ekaterina ponomareva · 2018. 10. 15. · ekaterina ponomareva supervisor: dr. aðalheiður...

LL.M. in International Environmental Law and

Natural Resources Law

Marine Spatial Planning:

International and EU legal framework in light of

ecosystem-based approach and public participation

Ekaterina Ponomareva

Supervisor: Dr. Aðalheiður Jóhannsdóttir

Faculty of Law

School of Social Sciences

University of Iceland

September 2017

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Contents Abstract ...................................................................................................................................... v

Abbreviations ............................................................................................................................ vi

1. Introduction ............................................................................................................................ 1

1.1 Objectives and principal hypothesis ................................................................................. 2

1.2 Structure ............................................................................................................................ 3

2. What is Marine Spatial Planning? .......................................................................................... 3

2.1.1 Definition of the MSP under the international law .................................................... 4

2.1.2 Definition of the MSP under the EU law ................................................................... 4

2.1.3 The connection between EBA, MSP and sustainable development .......................... 5

2.1.4 Belgian and Dutch case studies .................................................................................. 6

2.1.5 Land and marine spatial planning ............................................................................ 10

2.1.6 Existing tools of marine governance ........................................................................ 10

2.1.6.1 ICZM ..................................................................................................................... 10

2.1.6.2 MPA ...................................................................................................................... 11

2.1.6.3 Application of ICZM, MPA and MSP within the UNCLOS jurisdictional belts...11

2.1.7 Concluding remarks ................................................................................................. 13

2.2 EBA and its role for MSP ............................................................................................... 14

2.2.1 Ecosystem and its boundaries .................................................................................. 14

2.2.2 EBA and its characteristics ...................................................................................... 14

2.2.3 EBA and international (environmental) law ............................................................ 15

2.2.4 EBA and EU law ...................................................................................................... 16


2.3 Public participation and its role in MSP ......................................................................... 17

2.3.1 Public participation under international law ............................................................ 18

2.3.1.1 The first pillar – access to information ................................................................. 19

2.3.1.2 The second pillar – public participation in decision-making process ................... 20

2.3.1.3 The third pillar – access to justice ......................................................................... 20

2.3.2 Public participation under EU law ........................................................................... 20

2.3.2.1 First pillar – access to information ........................................................................ 21

2.3.2.2 Second pillar – public participation in decision-making process ......................... 22

2.3.2.3 Third pillar – access to justice............................................................................... 23

2.3.3 Stakeholder and public participation........................................................................ 24


2.4 Conclusion ...................................................................................................................... 25

3. International law relevant to MSP ........................................................................................ 26

3.1 The development of MSP ............................................................................................... 26

3.2 UNCLOS as an umbrella framework for MSP ............................................................... 27

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3.2.1 UNCLOS jurisdictional belts and MSP ................................................................... 27

3.2.2 Criticism toward the UNCLOS approach of delimitation ....................................... 29

3.2.3 UNCLOS and EBA .................................................................................................. 29

3.2.4 UNCLOS and public participation ........................................................................... 31


3.3 International law on selected maritime uses ................................................................... 32

3.3.1 Shipping and navigation .......................................................................................... 32

3.3.2 Fisheries ................................................................................................................... 33

3.3.2.1 EBA ....................................................................................................................... 34

3.3.2.2 Public Participation ............................................................................................... 35

3.3.3 Exploitation of non-living natural marine resources including oil and gas ............. 36

3.3.4 Power generation ..................................................................................................... 36

3.3.5 Dumping .................................................................................................................. 37

3.3.6 Conservation ............................................................................................................ 37

3.3.7 Selected maritime uses, the EBA and public participation – a comparison ............ 39


3.4 Other relevant instruments .............................................................................................. 41

3.4.1 MSP and assessment procedures.............................................................................. 41

3.4.2 MSP and UNICPLOS .............................................................................................. 43

3.5 Overview of law supporting MSP .................................................................................. 43

3.6 The need for reform ........................................................................................................ 48

3.7 Conclusion ...................................................................................................................... 49

4. MSP framework in the EU ................................................................................................... 49

4.1 Background and development ........................................................................................ 50

4.2 Legal difficulties in the planning of marine areas .......................................................... 51

4.2.1 Legal basis ............................................................................................................... 52

4.2.2 Multiple legal basis .................................................................................................. 52


4.3 The connection between MSP, IMP and MSFD ............................................................ 54

4.4 MS` obligations under FMSP ......................................................................................... 56

4.4.1 Definition of the MSP .............................................................................................. 56

4.4.2 The geographical scope of the FMSP ...................................................................... 56

4.4.3 Diversity of planning documents and legislation ..................................................... 58

4.4.4 Transposition period ................................................................................................ 59

4.4.5 MS procedural obligations ....................................................................................... 60


4.5 The EEA-EFTA states .................................................................................................... 62

4.5.1 Material scope of the EEA Agreement .................................................................... 62

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4.5.2 Geographical scope of the EEA Agreement ............................................................ 63

4.5.3 Material scope of the MSFD .................................................................................... 66

4.5.4 The FMSP and the EEA Agreement ........................................................................ 67

4.6 The FMSP and the EBA ................................................................................................. 68

4.6.1 FMSP and comparison with the 12 Malawi principles of the EBA ......................... 69


4.7 FMSP and public participation ....................................................................................... 72


4.8 Horizontal environmental legislation ............................................................................. 74

4.8.1 Interplay between MSFD and FMSP ....................................................................... 75

4.8.2 The SEA Directive and the FMSP ........................................................................... 77

4.9 Selected maritime uses having relevance to MSP .......................................................... 78

4.9.1 Conservation ............................................................................................................ 78

4.9.1.1 The Habitats and Birds Directives and the EBA................................................... 80

4.9.1.2 Habitats and Birds Directives and public participation ........................................ 80

4.9.2 Common Fisheries Policy ........................................................................................ 81

4.9.3 Renewable energy (wind, ocean energy) ................................................................. 82

4.9.4 Offshore oil and gas exploitation ............................................................................. 84

4.9.5 EU law, maritime uses and the inclusion of the EBA and public participation ....... 85

4.10 Summary of EU law on MSP and its EBA and public participation reflection ........... 88

4.11 Limitations and concerns .............................................................................................. 92

4.12 Conclusion .................................................................................................................... 93

5. Conclusions .......................................................................................................................... 95

5.1 What is an MSP? ............................................................................................................ 95

5.2 International law relevant to MSP .................................................................................. 95

5.3 MSP framework in the EU ............................................................................................. 96

5.4 Final conclusions ............................................................................................................ 97

Bibliography ............................................................................................................................ viii

Literature ............................................................................................................................. viii

Books ............................................................................................................................... viii

Articles ............................................................................................................................. viii

Other materials .................................................................................................................... x

Legislation ............................................................................................................................. xi

International Agreements ................................................................................................... xi

Other International Instruments ........................................................................................ xii

International Documents ................................................................................................... xii

Regional Agreements .......................................................................................................... xiii

EU Legislation ..................................................................................................................... xiii

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Regulations ...................................................................................................................... xiii

Directives ......................................................................................................................... xiv

Communications ............................................................................................................... xv

Other EU documents ........................................................................................................ xvi

EEA Documents ................................................................................................................. xvii

National Documents ........................................................................................................... xvii

Case Law ............................................................................................................................ xvii

Internet Sources ................................................................................................................. xviii

Figures

Figure 1 Correlations between sustainable development, EBA and MSP ................................. 6

Figure 2 Correlations between tools of marine governance ..................................................... 13

Figure 3 Timeline of policy development on MSP in the EU .................................................. 50

Figure 4 MSP legal bases under TFEU and division of competence ....................................... 53

Figure 5 Relation between IMP, MSFD and MSP ................................................................... 55

Figure 6 Geographical application of MSP under FMSP ........................................................ 57

Figure 7 Planning documents in marine and sea areas ............................................................. 58

Tables

Table 1 Selected uses for the MSP and reflection of the EBA and public participation.......... 40

Table 2 International legal framework on the MSP ................................................................. 48

Table 3 MS` progress towards implementation obligations under FMSP .............................. 60

Table 4 Comparison FMSP with the 12 Malawi principles of the EBA .................................. 71

Table 5 EU maritime uses and reflection of the EBA and public participation ....................... 87

Table 6 EU legal framework on the MSP ................................................................................ 92

Maps

Map 1 Overview of the Belgian MSP ........................................................................................ 7

Map 2 Dutch integrated maritime spatial policy map ................................................................ 9

Boxes

Box 1 Twelve Malawi principles of the EBA .......................................................................... 15

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Abstract

Human dependence on marine and coastal biodiversity is constantly increasing while marine

ecosystems degradation is continuous. Among the reasons for this are the growth of the human

population and the inadequacy of the marine legislation that concentrates on specific human

activities or focuses only on particular natural resources, and ignores ecosystem

interdependence, and rules that do not allow for public participation. To address these issues, a

Marine Spatial Planning framework has been developed as a mechanism to rationalise marine

space usage and prevent the degradation of marine ecosystems. It is acknowledged by theory

on Marine Spatial Planning that a successful Marine Spatial Plan shall be built upon an

ecosystem-based approach and also allows for public participation. With this in mind, the

primary objective of this thesis is to investigate international and European Union laws relevant

to marine spatial planning and if and how they include an ecosystem-based approach and rules

on public participation.

The findings of the legal analysis show that there are at present no detailed rules in

international law to support marine spatial planning, although there are some premises for the

ecosystem-based approach and developed norms for public participation. While there is the

framework on Maritime Spatial Planning in the European Union law, its main legal instrument,

the Framework Directive for maritime spatial planning, fails adequately reflect an ecosystem-

based approach and public participation, although it is acknowledged that overall framework

does to some extent include these legal norms.

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Abbreviations

CBD Convention on Biological Diversity

CFP Common Fisheries Policy

CJEU Court of Justice of the European Union

COP Conference of the parties

CORLEG Convention on the International Regulations for Preventing Collisions at Sea

EBA Ecosystem-based approach

ECHR European Court of Human Rights

EEA European Economic Area

EEZ Exclusive economic zone

EFTA European Free Trade Association

EIA Environmental impact assessment

EP European Parliament

ESA EFTA Surveillance Authority

EU European Union

FMSP Directive establishing a framework for maritime spatial planning

GES Good environmental status

ICJ International Court of Justice

ICZM Integrated coastal zone management

IMO International Maritime Organization

IMP Integrated Maritime Policy

MARPOL International Convention for the Prevention of Pollution from Ships

MPA Marine protected area

MS Member States

MSFD Marine Strategy Framework Directive

MSP Marine/maritime spatial planning

NGO Non-governmental organisation

OLP Ordinary legislative procedure

PPD Public participation directive

PSSA Particular sensitive sea area

SEA Strategic environmental assessment

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SDG Sustainable Development Goal

SLP Special legislative procedure

SOLAS International Convention for the Safety of Life at Sea

TFEU Treaty on the Functioning of the European Union

UN United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNESCO United Nations Educational, Scientific and Cultural Organization

UNGA United Nations General Assembly

UNFCCC United Nations Framework Convention on Climate Change

UN ICL United Nations International Law Commission

UNICPOLOS United Nations Open-ended Informal Consultative Process on Oceans and

the Law of the Sea

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1. Introduction

One of the Sustainable Development Goals to which many countries have committed reads as

follows: ‘By 2020, [countries will] sustainably manage and protect marine and coastal

ecosystems to avoid significant adverse impacts.’1 The rationale behind this goal is to conserve

and responsibly use the oceans, seas and marine resources to achieve sustainable development

as clearly defined by the United Nations Sustainable Development Goal.2 However, the reality

is that human dependence on marine and coastal biodiversity is constantly increasing,3 while

marine ecosystems are in continuous degradation.4

The reasons behind the degradation of marine ecosystems are many, including the

growth of the human population resulting in the growing need for marine space, the overuse of

marine resources, inadequacies in the existing marine governance to address the problems,

while there is fragmented legal framework without a holistic approach to maritime activities

and marine ecosystems.5

Concerns regarding the fragmentation of international law have been expressed by the

International Law Commission (ILC). The ILC argued that the fragmentation is two-

dimensional. On the one hand, it creates the risk of conflicting, incompatible rules, while also

indicating the expansion of international law.6 The same tendency is reflected in the

international marine governance with the numerous specialised, but disconnected agreements

however, also a general umbrella treaty, the United Nations Convention on the Law of the Sea

(UNCLOS).7 Moreover, the fragmentation of legislation is not only an international

phenomenon, the European Union (EU) laws are also quite fragmented. Various legal

1 Resolution adopted by the General Assembly, Transforming our world: the 2030 Agenda for Sustainable

Development, A/RES/70/1, 25 September 2015 (Agenda 2030). Target 14.2 of the United Nations Sustainable

Development Goals (UN SDG) 14. UN SDGs were adopted to in 2015 to eliminate poverty, protect the planet,

and ensure prosperity for all over the next 15 years and galvanize all stakeholders’ governments, private sector,

non-governmental organisations. 2 ibid. 3 U.S. Energy Information Administration, International Energy Outlook. With Projections to 2040 [2016] 1

predicts that under current policies total world consumption of energy will increase by 48 per cent between 2012

and 2040. In the shipping sector, container traffic continues to grow very fast, with volumes likely to triple by

2035. The Ocean Economy in 2030 (OECD Publishing 2016) 31 forecasts that fisheries are expected to increase

by around one-fifth over the next ten years with the core driver – aquaculture. In tourism, the low transport costs

of marine transport promote its growth, and it is expected to take the largest share among marine actives of 26 per

cent by 2030. 4 UNEP, Marine and coastal ecosystems and human wellbeing: A synthesis report based on the findings of the

Millennium Ecosystem Assessment (2006) 2. 5 ibid. 6 United Nations International Law Commission, Report of the Study Group of the, Fragmentation of international

law: Difficulties arising from the diversification and expansion of international law, A/CN.4/L.702 (2006) para

14, 14. 7 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November

1994) 1833 UNTS 3.

2

instruments concentrate on specific human activities that affect the environment or focus only

on a particular natural resource while ignoring the interdependence of ecosystems.8 Then, it is

appropriate to highlight the rationale that the decisions in environmental matters that include

public participation result in a higher level of quality, legitimacy, and democracy. However, the

current legislative framework in both legal orders that focuses on maritime uses do not allow

or only partially allow for public participation.

Against this background, a marine spatial planning (MSP) framework has been

developed as a tool to efficiently manage maritime uses and prevent the degradation of marine

ecosystems. The advantage of the MSP is that it does not highlight any particular sector or

environmental problem in isolation, but it considers the interdependence of marine ecosystems

and integrates competing maritime uses.9 According to the theory on MSP, this is only possible

if an MSP is built upon the ecosystem-based approach (EBA) in tandem with public

participation.

1.1 Objectives and principal hypothesis

The objectives of the thesis are the following:

(1) To define an MSP and its elements (EBA and public participation) as regards the

international and EU laws.

(2) To evaluate international and EU laws relevant to the MSP.

(3) To assess international and EU laws relevant to the MSP with regards to the

reflection of EBA.

(4) To identify whether these legal regimes contain provisions relating to the basic

elements of public participation.

It will be argued that international law currently lacks the necessary detailed rules to support

the development of EBA based MSP, as well as public participation, while the relevant EU

framework includes these elements. The main focus will be on the international and EU laws

relevant to MSP, however, only in exceptional cases will bilateral and regional agreements be

analysed.

8 As will be exemplified further, fragmentation at the international level is e.g. reflected by the Fish Stock

Agreement, Convention on Biological Diversity, International Convention for the Prevention of Pollution from

Ships. At the EU level – Regulation on Common Fisheries Policy, Offshore Safety Directive and Marine

Framework Strategy Directive are named as examples. 9 SM Daud Hassan et al. (eds), Transboundary Marine Spatial Planning and International Law (Earthscan Oceans

2015) 60.

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1.2 Structure

The thesis has been divided into four chapters. Chapter 2, What is marine spatial planning?

introduces the MSP as an emerging marine management tool in the international and EU legal

frameworks. The chapter contains an overview of the MSP and other tools of the marine

governance and examines the correlation between MSP, EBA and sustainable development. It

also introduces the elements of a successful MSP, the EBA and public participation.

Chapter 3, International law relevant to MSP, includes the analysis of the international

laws relating to MSP. It begins with an assessment on the reflection of the EBA and public

participation of the UNCLOS as the umbrella framework for the MSP. This chapter also

examines regulations of the different maritime uses and their reflection of the EBA and public

participation for achieving a successful MSP.

Chapter 4, MSP framework in the EU, covers the EU laws related to the MSP. It provides

an analysis of the development of the MSP and discusses the legal challenges for its

establishment. It also argues the necessity of the incorporation of legislation relevant to the

MSP into the European Economic Area (EEA) Agreement. In addition, the relevance of

horizontal legislation related to the MSP is discussed. Similarly, selected maritime uses are

assessed on the reflection of the EBA and public participation. Finally, it describes the legal

problems that need to be addressed by the legislature.

The material that is used within the thesis consists of international and EU legislation,

COP decisions, international and EU and International Court of Justice (ICJ) case law, books,

periodical literature, reports, recommendations and statistics of international and EU

organisations, and non-governmental organisations (NGOs).

2. What is Marine Spatial Planning?

To be able to approach the objectives of this research, it is first necessary to define MSP for

both legal regimes. Later, a Belgian and Dutch case studies will give a practical demonstration

of how MSP is actually presented. Then, this chapter also suggests that sustainable

development, EBA and MSP relate to each other as objective, method, tools respectively.

Moreover, for a better understanding of the MSP, it will be compared with land planning in a

brief manner. The present chapter also introduces other existing tools of marine governance,

such as integrated coastal zone management (ICZM) and marine protected areas (MPAs), and

their application within jurisdictional belts.

The third objective of this research is an assessment of the reflection of the EBA in the

international and EU legislation relevant to the MSP. To be able to develop a deeper analysis,

4

the EBA will be defined, and the main documents outlining its development in two legal

regimes will be provided. The forth objective is the analysis of these regimes with regards to

the reflection of the basic elements of public participation. To be able to conduct such an

investigation, the chapter will highlight the main elements of public participation and the lack

of consistency in the use of the terms ‘stakeholder’ and ‘public participation’.

2.1.1 Definition of the MSP under the international law

There is no universally accepted definition of MSP in international law. MSP has usually been

considered in a various ways, (1) a tool for the conservation and protection of the environment;

(2) a tool prioritising the economic side or (3) a tool perusing the balance between conservation

and sustainable use.10 Such diversity is in line with the views on the concept of sustainable

development that will be explained in section 2.1.3.

UNESCO has offered the following sound and inclusive definition of the MSP:

MSP is a public process of analysing and allocating the spatial and temporal distribution of human

activities in marine areas to achieve ecological, economic, and social objectives that usually have been

specified through a political process.11

As it can be seen, the definition of MSP differs from other marine polices by being

ecosystem-based, integrated, adaptive, strategic, area-based and participatory in nature.12

In addition to the definition of the MSP, UNESCO has determined Guidelines that

involve a number of steps in the establishment of MSP. The steps include: (1) identifying needs

and establishing authority; (2) obtaining financial support; (3) organising the process through

pre-planning; (4) organising stakeholder participation; (5) defining and analysing existing

conditions; (6) defining and analysing future conditions; (7) preparing and approving the spatial

management plan; (8) implementing and enforcing the spatial management plan; (9) monitoring

and evaluating performance, and (10) adapting the marine spatial management process.13

2.1.2 Definition of the MSP under the EU law

At the EU level, MSP is referred to as maritime spatial planning. Directive 2014/89/EU which

establishes the framework for maritime spatial planning (FMSP),14 defines it as:

10 SM Daud Hassan et al. (n 9) 6-8. 11 Ehler Charles and Fanny Douvere, Marine Spatial Planning: a step-by-step approach toward ecosystem-based

management. Intergovernmental Oceanographic Commission and Man and the Biosphere Programme (2009)

UNESCO ICO Manual and Guides 53 (UNESCO Guidelines on MSP) 18. 12 ibid. 13 ibid 18. 14 Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework

for maritime spatial planning [2014] OJ L 257.

5

A process by which the relevant Member States authorities analyse and organise human

activities in marine areas to achieve ecological, economic and social objectives.15

It is important to note that the EU legislator differentiates between the terms marine and

maritime. The former relates to the earth science of the oceans and seas, flora and fauna, and

their interaction with coastal territories and the atmosphere.16 The latter has an anthropogenic

perspective which relates to any human activity centred around sea and ocean resources.17 Such

an anthropogenic understanding of MSP is understandable as MSP focuses on the planning of

maritime uses and does not directly manage marine ecosystems. The definition of the MSP will

be further developed in chapter 4. For the sake of legal consistency, the two terms will be both

used as MSP but remain true their original understanding: marine spatial planning at the

international level and maritime spatial planning at the EU level respectively.

2.1.3 The connection between EBA, MSP and sustainable development

As mentioned before, in section 2.1.1, MSP is perceived in different ways which are similar to

the concept of sustainable development,18 which primarily aims to balance economic

development, protection of the environment and social aspects.19 The EBA has been accepted

as the key to deliver sustainable development by balancing the use of marine services and

maintaining the ecosystem integrity by virtue of the MSP.20 Similar to sustainable development,

MSP should not be recognised as a mechanism of purely social, economic or environmental

interests. Ideally, MSP should focus on maximisation of utilisation and protection of

biodiversity and ecosystems.21

Then, it can be argued that the equation between sustainable development, EBA and

MSP is as follows: objective method tool, where the objective (target) is the sustainable

development of the marine environment, the method (core) is EBA, and the practical

management tool (dart) is MSP.

15 ibid article 3(2). 16 EU Strategy for Marine and Maritime Research: Frequently Asked Questions MEMO/08/553 [2008] 1. 17 ibid. 18 World Commission on Environment and Development, Our Common Future (1987) (Brundtland Report) 40

defines that sustainable development seeks to meet the needs and aspirations of the present without compromising

the ability to meet those of the future. 19 SM Daud Hassan et al. (n 9) 8. 20 ibid 6. See more Erik Olsen et al, ‘Integration at the Round Table: Marine Spatial Planning in Multi-Stakeholder

Settings’ 9(10) (2014) PLoS ONE 1. 21 SM Daud Hassan et al. (n 9) 8.

6

Krämer, in 2012, referring to the definition of sustainable development under secondary

EU legislation,22 argues that it is impossible to achieve sustainable development,23 and he may

be right on this point. The current situation according to EU law demonstrates this view,

particularly when the term sustainable development has a positive and favourable green

economic development understanding instead of the above-mentioned balance between

economy, environment and social spheres.24 Whether the MSP can reconcile sustainable use

and the conservation of marine ecosystem services in the future remains to be seen. However,

the proper balance of these objectives is, however, necessary even when its practical application

is complex.

2.1.4 Belgian and Dutch case studies

Belgium became one of the first European countries that developed and implemented an MSP.25

The MSP for the Belgian Part of the North Sea includes the following maritime activities:

shipping, ports, mineral extraction, offshore renewable energy production, fishing, aquaculture,

tourism (including recreation and sports), underwater cultural heritage, nature protection,

22 Regulation (EC) 2493/2000 of the European Parliament and of the Council of 7 November 2000 on measures to

promote the full integration of the environmental dimension in the development process of developing countries

[2000] OJ L 288/1 article 2 defines sustainable development as improvement of the standard of living and welfare

of the relevant populations within the limits of the capacity of the ecosystems by maintaining natural assets and

their biological diversity for the benefit of present and future generation. 23 Ludwig Krämer, EU Environmental Law (7th edn, Sweet & Maxwell 2012) 10. 24 ibid 11 e.g. sustainable transport, sustainable use of energy, sustainable consumption shows EU practise of abuse

term sustainable in order to give policy ‘green colour’. 25 Royal Decree of 20 March 2014 on the adoption of the MSP for the Belgian part of the North Sea [2014] Belgian

part of the North Sea is a small area of ca. 3500 km2

Figure 1 Correlations between sustainable development, EBA and MSP

7

military, scientific research and submarine cables and pipelines.26 These maritime uses will be

further used as background for the description of international and EU regulations relating to

the MSP.

The Belgian MSP covers the territorial sea, the continental shelf and the entire Belgian

EEZ.27 Belgium and the Netherlands (see further below) are EU MS, but the EU legislation

does not provide an exhaustive list of the maritime uses subjected to MSP, which means that

each MS is free to allocate the uses, according to its own needs. (discussed further in section

4.4)

28

26 Belgian Federal Public Service Health, Food Chain Safety and Environment, Brochure Something is moving at

sea… A marine spatial plan for the Belgian part of the North Sea [2014] 2. Interestingly, Belgium North Sea is

also sometimes used for military activities and exercises. The MSP designates several zones for these activities.

As can be seen from the Map area called the Paardenmarkt is a storage site for the war ammunition left after the

World War One. 27 ibid. 28 ibid 23.

Map 1 Overview of the Belgian MSP

8

The Dutch MSP is also of interest as its part of the North Sea is one of the most

intensively used marine areas in the world.29 The expected intensification of the uses of the

North Sea has promoted to develop the Policy Document on the North Sea 2016-2021 aiming

to harmonise various designated uses within the limits of the marine ecosystem.30 The Dutch

MSP applies to the non-administratively classified territorial sea, including the coastal waters,

and the EEZ.31 See further on the issue coverage in section 4.2. Currently, the Dutch plan covers

the following uses: oil and gas extraction, surface material extraction, coastal sand extraction,

pipelines and cables, shipping routes, military exercise zones, wind energy, nature conservation

areas and fishing.32 The Dutch plan also forecasts the long vision development of maritime uses

and marine ecosystem for the period up until 2050. Among the new and anticipated maritime

uses are the further development of the renewable energy sector, tourism and recreation and

underwater cultural heritage.33 (see Map 2 below)

29 The Dutch Ministry of Infrastructure and the Environment, The Dutch Ministry of Economic Affairs, Policy

Document on the North Sea 2016-2021 [2015] 15. 30 ibid 8. 31 ibid 7. 32 ibid 34. 33 ibid 12-13.

9

34

34 ibid 2.

Map 2 Dutch integrated maritime spatial policy map

10

2.1.5 Land and marine spatial planning

A formal spatial planning of the different uses is traditionally a tool for land-use planning35 and

such planning, inter alia takes into consideration both private and public land rights. Marine

areas are, on the other hand, not subject to land rights.36 Additionally, an MSP is three

dimensional and applicable to the seabed, the water column, and the marine surface. However,

an MSP does resemble land-use planning as it usually implicates similar steps that result in

planning that targets economic and ecological objectives together.

As well as the resemblance between the land and marine spatial planning, it is important

to remember that most of the maritime uses have a close connection with the land (e.g. shipping

has shipping routes at sea and ports at land) and hence, both spatial mechanisms mutually

influence each other.

2.1.6 Existing tools of marine governance

For a full understanding of an MSP, it is necessary to describe the existing tools of marine

governance and outline their differences and application within the UNCLOS jurisdictional

belts. Some of the tools, such as MPAs, focus mainly on the preservation of marine species,

while others, such as ICZM and MSP, have broader functions, including the prevention of

ecosystems degradation. As outlined by the South China Sea case, possible measures to prevent

the degradation of coral reefs are not limited to those aimed strictly at controlling marine

pollution.37 However, it can be assumed that MSP can play this role if it includes an EBA.

Further description of ICZM, MPA and MSP provides the possibility of interplay between

them.

2.1.6.1 ICZM

There is no law on the ICZM at international and EU level. In theory, ICZM is often described

as:

Continuous and dynamic process that unites government and the community, science and

management, and sectoral and public interests in an integrated policy for the protection and

development of coastal ecosystems and resources in the coastal zones respectively. 38

35 SM Daud Hassan et al. (n 9) 61. 36 ibid. 37 The South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China [2016]

Award of 12 of July 2016, PCA Case Nº 2013-19 para 945. 38 S Olsen, J Tobey and M Kerr, ‘A common framework for learning from ICM Experience’, Ocean & Coastal

Management 37 (2) (1997) 157.

11

As it can be seen, ICZM aims to ensure the effective integration between river basin

management and coastal ground water management.39 This concept was developed for the

planning of coastal to marine areas, and provides a certain foundation for the MSP.40

2.1.6.2 MPA

The MPA has been defined by the Conference of the Parties (COP) to the Convention on

Biological Biodiversity (CBD) as:

Special area within marine environment, together with its overlying waters and associated flora, fauna,

and historical and cultural features, which has been reserved by legislation or other effective means,

including custom, with the effect that its marine biodiversity enjoys a higher level of protection than its

surroundings.41

The MPA is referred to as a no-take zone, and are usually established within the EEZ with only

a few seen on the high seas.42 While MPAs have primarily concentrated on conservation, an

MSP is a more integrated and coherent tool that includes social and economic, as well

ecological aspects. However, at the beginning of its development, MSP initially concentrated

on MPAs.43 This will be described further with the Australian Great Barrier Reef Marine Park

example in section 3.1. As of now, MPAs are an important element of the MSP.

2.1.6.3 Application of ICZM, MPA and MSP within the UNCLOS jurisdictional belts

The application of these three planning mechanisms under the UNCLOS jurisdictional belts44

can be observed in a Graphic description in Figure 2. The extended description of the

jurisdictional belts will be provided in section 3.2.1.

The ICZM is a tool that emphasises the interdependence of land and coastal waters and

is usually applied within internal and coastal waters45 with its outer limit of the territorial sea.46

39 The Ocean Economy (n 3) 226. 40 ibid. 41 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, in force 29 December 1993) 1760 UNTS 79,

COP 7 (2004) Decision VII/5 ‘Marine and coastal biological diversity’. 42 The Ocean Economy (n 3) 227. 43 ibid. 44 UNCLOS (n 7) includes the following delimitation within national jurisdiction on: internal waters, territorial

waters, contagious zone, exclusive economic zone (EEZ) and continental shelf. 45 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a

framework for Community action in the field of water policy [2000] OJ L 327 (Water Framework Directive) article

2(7) defines coastal waters as means surface water on the landward side of a line, every point of which is at a

distance of one nautical mile on the seaward side from the nearest point of the baseline from which the breadth of

territorial waters is measured, extending where appropriate up to the outer limit of transitional waters. It is not

delimitation under UNCLOS, but was important to introduce this geographical term as MSP also often

implemented in the coastal waters. 46 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean

(Barcelona, 16 February 1976, in force 12 February 1978) 1102 UNTS 27, Protocol on Integrated Coastal Zone

Management in the Mediterranean (Madrid, 21 January 2008) OJ L 34 article 3.

12

On the other hand, MPAs could be applied anywhere starting in the internal waters, but

are usually placed within the EEZ (200 nm from the baseline)47 and only around 10 per cent of

them are extended out of national jurisdiction.48

Similarly, MSP can be applicable to the internal waters, the coastal waters,49 the

territorial sea and the EEZ and even the high seas. As was mentioned by the Second

International Conference on MSP, as of 2016, the international scale of spatial coverage of MSP

plans looks as follows: the internal waters (municipal waters) – 10 per cent, the territorial sea –

38 per cent and the EEZ – 53 per cent.50 Finally, as for the high seas (areas out of national

jurisdiction), it remains a concern if the MSP can be an effective area-based management

process for this area.51

The Figure 2 clearly demonstrates that ICZM, MPAs and MSP overlap with each other.

However, as previously mentioned, ICZM, MPAs and MSP should be used complementarily

in order to achieve maximum results. Then again, the allocation of these tools within the

UNLCOS jurisdictional belts is under national competence.

47 UNCLOS (n 7) article 57. 48 The Ocean Economy (n 3) 227. 49 Coastal waters are not the UNCLOS jurisdictional belt, but was important to introduce this geographical term

as MSP also often implemented in the coastal waters.The definition of the coastal waters varies from the national

model. For example, in the EU ICZM applies to the coastal waters – surface water on the landward side of a line,

every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the baseline

from which the breadth of territorial waters is measured, extending where appropriate up to the outer limit of

transitional waters. Para 2 of article 2 of the Water Framework Directive (n 45). 50 Charles N Ehler, World-wide Status and trends of MSP (Second International Conference on MSP, 15-17 March

2017) 18 <http://www.msp2017.paris/> accessed 08 May 2017. 51 ibid 25.

13

IW internal waters CS continental shelf

TSB territorial sea baseline HS high sea

CW coastal waters ICZM integrated coastal zone management

TS territorial sea MPAs marine protected areas

CZ contiguous zone MSP marine spatial planning

EEZ exclusive economic zone

2.1.7 Concluding remarks

An MSP is a response to growing maritime uses and takes into consideration economic,

ecological, and social aspects. Despite terminological differences in both legal orders, an MSP

can be defined as an integrated tool that including an EBA, which should ensure public

participation and reflect the three aspects of the sustainable development marine governance

tool. Then, an MSP resembles land-use planning to a large extent. An MSP also takes into

account existing tools such as ICZMs and MPAs. However, how these tools interact are applied

within the jurisdictional belts are at the discretion of the EU and national legislators.

ICZM

MPAs

TSB

CW TS

CZ EEZ

CS HS

MSP

IW

Figure 2 Correlations between tools of marine governance

14

2.2 EBA and its role for MSP

EBA is the foundation for a successful MSP. As one of the objectives of this thesis focuses on

the evaluation of the reflection of the EBA by the international and EU laws relevant to MSP,

this section will introduce EBA and describe its main principles and legal development under

the international and EU laws.

2.2.1 Ecosystem and its boundaries

The CBD defines an ecosystem as:

Dynamic complex combination of plant, animal and micro-organism communities and their non-living

environment interacting as a functional unit.52

Ecosystems differ in size, and a lake, ocean floor or even a drop of water can represent different

size ecosystems.53 The key aspect of the EBA is its governance perspective which focuses on

the functioning of the ecosystem within its ecological boundaries. It is important to maintain

the integrity of a specific ecosystem and variation of species composing it,54 and it can be a

challenge to identify its particular boundaries. As expected, it can, therefore, be problematic to

keep healthy ecosystems when boundaries do not correspond with the jurisdictional belts of the

UNCLOS as will be shown in section 3.2.2.

2.2.2 EBA and its characteristics

There is no definition of EBA in the CBD. However, COP to the CBD in Decision V/6 endorsed

the definition of the EBA as:

Strategy for the integrated management of land, water and living resources that, ultimately,

promotes conservation and sustainable use in an equitable way. 55

This definition matches with the main objectives of the CBD in Article 1.56 In fact, it also

reflects the concept of sustainable development outlining the balance between natural systems

and the interrelation between ecological, social and economic systems.57

From the definition it is possible to infer that the protection of biodiversity is not the

primary focus of an EBA, but balance between conservation and sustainable use. However, the

52 CBD (n 41) article 2. 53 Froukje Maria Platjouw, Environmental Law and the Ecosystem Approach. Maintaining ecological integrity

through consistency in law (Routledge 2016) introduction. 54 Edward O Wilson, The Future of Life (Vintage Books 2003) 213. 55 CBD (n 41), COP 5 (2000) Decision V/6 ‘Ecosystem approach’. 56 ibid article 1 states that the CBD aims to the conservation of biological diversity, the sustainable use of its

components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources,

[…]. 57 Elianny Domínguez-Tejo et al. ‘Marine Spatial Planning Advancing the Ecosystem-Based Approach to Coastal

Zone Management: A Review’ Marine Policy 72 (2016) 116.

15

(1) objectives of the management are a matter of societal choice;

(2) management should be decentralised to the lowest appropriate level;

(3) consideration of the effects of activities on adjacent and other ecosystems;

(4) consideration of the ecosystem in an economic context, e.g. mitigating market

distortions, aligning incentives to promote sustainable use, and internalising costs and

benefits;

(5) conservation of ecosystem structure and functioning;

(6) ecosystems must be managed within the limits to their functioning;

(7) the ecosystem approach should be undertaken at the appropriate spatial and

temporal scale;

(8) recognising the varying temporal scales and lag effects which characterise

ecosystem processes, objectives for ecosystem management should be set for the long

term;

9) recognition of inevitable change;

(10) appropriate balance between conservation and use of biodiversity;

(11) consideration of all forms of relevant information, including scientific and

indigenous and local knowledge, innovations and practices;

(12) involvement of all relevant sectors of society and scientific disciplines.

Box 1 Twelve Malawi principles of the EBA

EBA still causes concerns in a way that it is only applicable for ecosystem services that

contribute to human wellbeing which is different from the conservation approach that aims to

promote the persistence of all biodiversity regardless of value for humans.58

It was observed that almost all MSP initiatives claim to be ecosystem-based, but it is

difficult to validate.59 In this regard, 12 Malawi principles in the Box 1 of the ecosystem

approach that were defined by the COP 460 seem to be proper indicators for the EBA reflection.

(section 4.6.1 analysis EU laws relevant to MSP on the reflection of the EBA)

However, it is relevant to realise that COP decisions do not have binding power but can be used

as guidelines for an effective implementation of the EBA MSP.

2.2.3 EBA and international (environmental) law

The EBA has been a part of the international (environmental) law from the early 1970s. It was

first presented at the 1972 Conference on the Human Environment, commonly known as the

Stockholm Conference.61 Later, during the 1992 Rio Conference, the Rio Declaration

58 Jane Carter Ingram, Kent H Redford and James EM Watson ‘Applying Ecosystem Services Approaches for

Biodiversity Conservation: Benefits and Challenges’ S.A.P.I.EN.S. Surveys and Perspectives Integrating 5(1)

(2012) para 15. 59 Charles N Ehler, World-wide Status and trends of MSP (Second International Conference on MSP, 15-17 March

2017) 34. 60 CBD (n 41), COP 4 (1998) Report of the Workshop on the Ecosystem Approach. 61 Declaration of the United Nations Conference on the Human Environment (1972) A/CONF48/14/Rev.1(19R)

(Stockholm Declaration) article 2 underlines that the natural resources of the earth including flora and fauna

representative samples of natural ecosystems, must be safeguarded for the benefits of present and future

generations through careful planning or management.

16

highlighted some features of the EBA, including the responsibility to conserve, protect and

restore the health and integrity of the Earth`s ecosystem.62 The Rio Declaration also recognised

that the marine environment, including the oceans and all seas and adjacent coastal areas, form

an integrated whole that is an essential component of the global life-support system and a

positive asset that presents opportunities for sustainable development.63 Furthermore, in CBD

COP V, the EBA was defined and contains the above-mentioned 12 principles. Later, the

Strategic Plan for Biodiversity 2011-2020 with the Aichi targets outlined the role of the

ecosystem services with the emphasis on conservation of biodiversity.64 Even though the above-

mentioned instruments only marginally introduced the legal development of the EBA for

international law, they highlighted two main paths of its development that is under the CBD

umbrella and outside of the CBD regime.

2.2.4 EBA and EU law

The EU framework reflecting the EBA seems to be more diverse than the international

framework. In this section, the EU law, having some relation to the EBA within the marine

sector will be looked at but a deeper discussion on the issue is found in chapter 4.

Various EU policies and strategies are in one way or another reflecting the EBA. This

includes maritime legislation, such as the Integrated Maritime Policy,65 the Common Fisheries

Policy,66 and the ICZM.67 Among EU Directives that includes EBA are the Marine Strategy

Framework Directive 2008/56/EU (MSFD)68 and the FMSP. The MSFD is an umbrella

legislative instrument with a flagship EBA that seeks to manage human activities by making

them more compatible to achieve a good environmental status (GES) without compromising

the marine ecosystem.69 Then, the establishment of the MSP shall be coherent with the MSFD.

62 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3-14 June 1992),

Annex I, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol I)(Rio Declaration) principle

7. 63 ibid chapter 17. 64 CBD (n 41), COP 10 (2010) Decision X/2 ‘Strategic Goals and the Aichi Biodiversity Targets’. 65 COM (2007) 575, final ‘Communication from the Commission to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of the Regions - An Integrated Maritime Policy for

the European Union’. 66 COM (2011) 417, final ‘Communication from the Commission to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of the Regions Reform of the Common Fisheries

Policy’. 67 Recommendation of the European Parliament and of the Council of 30 May 2002 concerning the implementation

of Integrated Coastal Zone Management in Europe [2002] OJ L 148. 68 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework

for community action in the field of marine environmental policy [2008] OJ L 164. 69 ibid article 3(5) states that ecosystem approach shall be applied with the aim of attaining GES.

17

Correspondingly, the FMSP also contains to some extent certain norms on the EBA. The extent

of the EBA reflection by the EU legislation relevant to the MSP will be analysed in chapter 4.


To conclude, the EBA plays an important role for the MSP aiming to balance between the use

of marine ecosystem services and the maintenance of marine ecosystem integrity. The EBA is

an approach that has been internationally accepted mainly by non-binding instruments and

defined by the COP Decision to the CBD as a strategy for the integrated management of land,

water and living resources that promotes conservation and sustainable use in an equitable way.

At the EU level, the EBA is a key foundation for legislation mainly within EU secondary

legislation of maritime sector.

2.3 Public participation and its role in MSP

As mentioned before, in the introduction, public participation is considered to be an important

element for a successful MSP. Public participation is one principle that rests on so-called three

pillars: access to information, access to the decision-making process and access to justice.

Before going into the description of public participation and its pillars, the link of public

participation and the social pillar of sustainable development will be discussed.70

The literature suggests four pre-eminent policy concepts of the social pillar: equity,

awareness for sustainability, public participation and social cohesion.71 Public participation is

justified by the social inclusion of society that makes government policy legitimate and reduces

conflicts.72

Correspondingly, public participation can be seen as the part of the EBA as it was pinned

by some of the Malawi principles, such as the consideration of all forms of relevant information,

including indigenous and local knowledge as well as the involvement of all relevant sectors of

society.73 However, even acknowledging a strong connection with the EBA, this work will refer

to the public participation independently as a principle ensuring the quality of legislation on

MSP.

70 CBD (n 41) Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena, 29 January

2000, in force 11 September 2003) 2226 UNTS 208 article 23(1)(a) states that parties shall promote and facilitate

public awareness, education and participation concerning the safe transfer, handling and use of living modified

organisms in relation to the conservation and sustainable use of biological diversity, taking also into account risks

to human health. Follow this, it can be suggested that public participation is a social pillar of sustainable

development in line with the other conservation and use. 71 K Murphy ‘The social pillar of sustainable development: a literature review and framework for policy analysis’

Sustainability: Science, Practice, & Policy 8(1) (2012) 15. 72 ibid. 73 Twelve Malawi principles (n 60).

18

2.3.1 Public participation under international law

By allowing the public to participate in environmental decision-making, it is assumed that the

decisions will have a higher quality as public participation guarantees transparency, efficiency,

and legitimacy. However, it is relevant to mention that in the environmental field public

participation emerged rather recently. In fact, the principle was first introduced by the United

Nations Framework Convention on Climate Change (UNFCCC) which states:

The responsibility to promote and facilitate education and public awareness, public access to

information, public participation, training and international cooperation with respect to addressing

climate change and its effects.74

The principles of public participation, one or several, has also been acknowledged by other

legally binding treaties.75 Moreover, the importance of public participation in addressing

climate change has continued to strengthen themselves and are, for example, affirmed by Paris

Agreement.76

Among the non-binding instruments is the Rio Declaration. In its Principle 10, it is

stipulated that:

Environmental issues are best handled with the participation of all concerned citizens, the

facilitation of public awareness, the encouragement of public awareness and the provision of

effective access to judicial and administrative proceedings.77

The idea of public participation is as well recognised by the UN SDG 16 that aims to ‘Promotion

of peaceful and inclusive societies’. As mentioned in chapter 1, the UN SDGs contains 17

global goals with 169 targets that countries have committed themselves to achieve by 2030. Of

particular relevance is target 16.7 that focuses on ensuring responsive, inclusive, participatory

and representative decision-making at all levels and 16.10 which focus is on providing public

access to information and the protection of fundamental freedoms.78

The principle of public participation in environmental issues is also formulated by the

UN Economic Commission for Europe`s Convention on Access to Justice in Environmental

74 United Nations Framework Convention on Climate Change (New York, 9 May 1992, in force 21 March 1994),

1771 UNTS 107 article 6. 75 CBD (n 41) Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena, 29 January

2000, in force 11 September 2003) 2226 UNTS 208 article 23; 1 Stockholm Convention on Persistent Organic

Pollutants (Stockholm, 22 May 2001, in force 17 May 2004) 2226 UNTS 119 article 10. The list of treaties that

include public participation principle is not exhaustive. 76 Framework Convention on Climate Change, Framework Convention on Climate Change (n 74) Adoption of the

Paris Agreement, 21st Conference of the Parties, FCCC/CP/2015/L.9/Rev.1 (Paris, 12 December 2015, in force

04 November 2016) registration number 54113 (Paris Agreement) preamble and article 12. 77 Rio Declaration (n 62) principle 21 78 Agenda 2030 (n 1) 26.

19

Matters (Aarhus Convention).79 The Convention has 47 parties,80 which is yet clearly not

universal acceptance. However, in 2004 and despite the fact that the Aarhus Convention had

not yet been ratified by Turkey, the European Court of Human Rights (ECHR) in the Taskin

case81 acknowledged the principles of public participation.82

It is, however, relevant to mention that in 2006, the principle of public participation was

not recognised as a general principle of international law by the ICJ in Pulp Mills case law.83

The discrepancy between the rulings of two international courts highlights the uncertain

status of public participation. Nevertheless, a review of the jurisprudence shows that the public

participation is consolidating in international law. Also, recalling theory of integrity of law,84

Rio Declaration, UNFCCC and other above-mentioned treaties with norms on public

participation, it can be assumed that relevant international environmental laws should also

implement norms on public participation, particularly if we consider that public participation

was developed in detail in the Aarhus Convention.

With this in mind, the current thesis will assess existing international legal instruments

relevant to MSP on the inclusion of norms regarding public participation as it is prescribed by

the Aarhus Convention in line with the international treaties and policies.

As mentioned in the Rio Declaration and developed later by the Aarhus Convention,

public participation in environmental issues is essentially made up of three pillars and includes

access to information, participation in decision-making processes, and effective access to

judicial and administrative proceedings.85A brief description of three-pillar public participation

in international and EU law is introduced below.

2.3.1.1 The first pillar – access to information

The first pillar, access to information, is reflected in Articles 4 and 5 of the Aarhus Convention.

Article 4 defines the right of the public to access environmental information and a duty for

public authorities to make such information available when requested. The authorities can,

however, refuse a request for environmental information under certain circumstances. Such

79 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in

Environmental Matters (Aarhus, 25 June 1998, in force 30 October 2001) 2166 UNTS 450. 80 ‘Status of ratification’ <https://www.unece.org/env/pp/ratification.html> accessed 2 December 2016. As of 27

of July 2016, there were 47 Parties to the Aarhus Convention. 81 Taskin and Others v Turkey [2004] no. 46117/99, ECHR Judgement of 10 November 2004. 82 L-A Duvic-Paoli, ‘The Status of the Right to public participation in International Environmental Law: An

Analysis of the Jurisprudence’, Yearbook of International Environmental Law 2.3(1) (2013) 81. 83 Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, Order of 13 July 2006, ICJ Rep

14 para 216. 84 Jonathan Crowe, 'Dworking on the Value of Integrity’, Deakin Law Review 12(1) (2007) 169 Integrity in

legislation requires the legislature to make the law coherent, bearing in mind a set of overarching values 85 Aarhus Convention (n 79) article 1.

https://www.unece.org/env/pp/ratification.html

20

refusal has to be justified, and a review is made possible in line with article 9(1). Article 5

determines the manner in which the information for public authorities is collected and

disseminated.

2.3.1.2 The second pillar – public participation in decision-making process

The second pillar, public participation in decision-making process, is regulated by Articles from

6 to 8. Article 6 applies to decisions on specific activities listed in Annex I to the Aarhus

Convention or other activities in accordance with national law having potential of significant

impact on the environment. Such activities are subject to public participation procedures before

granting a permit. Article 7 regulates public participation in relation to environmental plans,

programmes and policies. The relevant authorities shall identify the public that can participate

in the process and provide them with the opportunities for early participation in the preparation

of the aforesaid documents. Finally, Article 8 entails that public participation should be

promoted during the preparation of the executive regulations and legally binding rules that may

have a significant effect on the environment. Correspondingly, this pillar follows the belief that

the results of public participation shall be taken into account as far as possible.

2.3.1.3 The third pillar – access to justice

The third pillar, access to justice in environmental matters, is regulated by Article 9, where

Article 9(1) and (2) ensure the enforcement of two above-mentioned pillars and Article 9(3)

promotes the access to justice to enforce environmental legislation. Concerning Article 9(1),

any person who considers that the request for the information under Article 4 has not been

satisfied is empowered to access a review procedure before a court or another public authority

established by law. Article 9(2) constitutes access to justice to challenge the legality of any

decision, act or omission resulting from Article 6 where so provided by national law. It also

applies for the acts and omissions under Articles 7 and 8. Article 9(3) is independent of the

other pillars of the Aarhus Convention and establishes the possibility to challenge the acts and

omissions by private persons and public authorities which are not compliant with national

environmental legislation.

2.3.2 Public participation under EU law

The EU is a party to the Aarhus Convention86 and thus having an obligation to implement its

principles into EU law. The general principles of transparency in governance and of civil

86 ‘Status of ratification of the Aarhus Convention’

<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-13&chapter=27&clang=_en>

accessed 10 January 2017.

https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-13&chapter=27&clang=_en

21

society are promoted by the Treaty on the Functioning of the European Union (TFEU).87 As

such, Article 10(1) of the TFEU entails that every citizen shall have the right to participate in

the democratic life of the Union, and all decisions at the EU level shall be taken as openly as

possible and as closely as possible to the citizen. These TFEU principles together with the

Aarhus principles of public participation should be implemented in similar fashion as in the

EU, and as in the national levels.

2.3.2.1 First pillar – access to information

Several EU Acts implement the Aarhus principles enshrined in Articles 4 and 5 into EU law.

The first pillar, access to environmental information, aims to disseminate the information from

the state authority towards the public at the MS level. It is then guaranteed by the Directive

2003/4/EC stating that the environmental information is to be available upon request for any

applicant.88 At the EU institutional level, the INSPIRE Directive sets general rules on the

establishment of the infrastructure for dissemination of spatial information having an impact on

the environment in the EU,89 while access to environmental information from the EU bodies is

provided by the Aarhus Regulation 1367/2006.90

The scope of the first pillar is to provide access to environmental information and

dissemination of such information. In this case, environmental information refers to (1) the state

of the elements of the environment and interaction among them, (2) factors affecting or likely

to affect the elements of the environment, (3) measures to protect those elements, (4) reports

on the implementation of environmental legislation, (5) economic analyses of measures

mentioned in (3), and (6) the state of human health.91

Hence, if the EU legal act has any environmental content, it is more likely that it should

be coherent with the aforesaid legislation and ensure access to environmental information. The

extent of inclusion of the first pillar of public participation in the EU law relevant to MSP will

be further illustrated in chapter 4.

87 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326 article 15. 88 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to

environmental information and repealing Council Directive 90/313/EEC [2003] OJ L 041 article 3. 89 Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an

Infrastructure for Spatial Information in the European Community OJ L 108 [2007] (INSPIRE Directive) article

1. 90 Regulation (EC) 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the

application of the provisions of the Aarhus Convention on Access to Information, Public participation in Decision-

making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L 264

(Aarhus Regulation). 91 Directive 2003/4/EC (n 88) article 2.

22

2.3.2.2 Second pillar – public participation in decision-making process

The EU legislation implementing the Aarhus Convention’s rules on participation in decision-

making can be found in a number of Directives. As such, PPD Directive 2003/35/EC transposed

the rules on public participation into EU rules applicable to MS.92 It amends EIA Directive93

and IPPC Directive (now Industrial Emission Directive).94

The EIA Directive aims to transpose Article 6 of the Aarhus Convention and applies to

particular projects when they may directly or indirectly affect the following factors: (1)

population and human health, (2) biodiversity, (3) land, soil, water, air and climate, (4) cultural

heritage and the landscape, and (5) interaction between (1) and (4).95 Necessary to remark that

EIA procedure is not prescribed by the FMSP that is why EIA Directive will be only partially

highlighted in chapter 4 in relation to maritime activities.

PPD Directive applies to plans and programmes relating to the environment excluding

plans and programmes falling under the scope of SEA Directive 2001/42/EC.96 SEA Directive

targets to transpose Article 7 of the Aarhus Convention and promotes public participation with

regards to the drawing up of certain plans and programmes having significant effects on the

environment. The application of the SEA Directive is mandatory for all plans and programmes

which target agriculture, forestry, fisheries, energy, industry, transport, waste management,

water management, telecommunications, tourism, town and country planning, and diverse

projects of the land use if they have a link to the EIA directive.97 The FMSP subjects MSP with

possible environmental effect to the strategic environmental assessment under the SEA

Directive.98

At the EU institutional level, public participation is promoted by Article 9 of the Aarhus

Regulation.99 Lastly, as was mentioned at the beginning of this section legislation described

above transposed Articles 6 and 7 of the Aarhus Convention, while Article 8 on the public

92 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public

participation in respect of the drawing up of certain plans and programmes relating to the environment and

amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC

[2003] OJ L 156 (PPD Directive). 93 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive

2011/92/EU on the assessment of the effects of certain public and private projects on the environment [2014] OJ

L 124 (EIA Directive). 94 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial

emissions (integrated pollution prevention and control) [2010] OJ L 334 (Industrial Emission Directive). 95 EIA Directive (n 93) article 3. 96 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the

effects of certain plans and programmes on the environment [2001] OJ L 197 (SEA Directive). 97 ibid article 3(2). 98 FMSP (n 14) para 23. 99 Aarhus Regulation (n 90) article 9 states that the EU institutions are obliged to make environmental information

available, receive comments and consider outcome of public participation and final decision shall be available for

the public.

23

participation in the environmental policy making has not been implemented in the same way.

A further analysis of the application of public participation in the decision-making

process within law relevant to MSP will be provided in section 4.8.2.

2.3.2.3 Third pillar – access to justice

Access to justice is the weakest pillar according to EU law, especially at the MS level. This

results from the procedural anatomy of the MS.100 As mentioned in section 2.3.1.3, Article 9 of

the Aarhus Convention reflects right of access to information, rights to participate in decision-

making procedures in specific activities and rights to appeal acts and omissions that infringe

environmental law in general and remedies of these procedures.

To some extend Article 9 are implemented by the Directive 2003/4/EC,101 EIA

Directive,102 Industrial Emission Directive,103 Environmental Liability Directive

2004/35/EC,104 Seveso III Directive.105 However, there is no independent legislation devoted

to the access of justice. A proposal for a new directive on this regard106 remained for over a

decade without any agreement and has recently been withdrawn.107

At the same time, the CJEU has issued significant rulings clarifying EU requirements

on access to justice in environmental matters and guarantees access to justice at the EU level.108

The pillar access to justice is weak not only from a procedural point of view but from a

material one as well. The laws mentioned above mainly ensure access to justice in case of failure

to ensure the two first pillars of public participation,109 while under Article 9(3) of the Aarhus

Convention on the review of the act or omission of public authority or private person when they

contravene national legislation relating to environment has not yet found full implementation

under the EU legislation, however, CJEU has issued numerous rulings. Consequently, the three

100 Case 33/76 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1976] ECR 1989 formulated the

general rules that in the absence of harmonisation, the procedural rule is left for the MS. 101 Directive 2003/4/EC (n 88) article 6(2). 102 EIA Directive (n 93) article 11. 103 Industrial Emission Directive (n 94) article 13. 104 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental

liability with regard to the prevention and remedying of environmental damage [2004] OJ L 143 article 13

(Environmental Liability Directive). 105 Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on the control of major-

accident hazards involving dangerous substances, amending and subsequently repealing Council Directive

96/82/EC [2012] OJ L 197 (Seveso III Directive) article 23. 106 Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental

matters /* COM/2003/0624 final [2003] OJ L 41. 107 Withdrawal of obsolete Commission proposals of 21 May 2014 [2014] OJ C 153. p. 3–7. 108 Commission Notice on Access to Justice in Environmental Matters of 28 April 2017/ C(2017) 2616 final. 109 Aðalheiður Jóhannsdóttir, ‘EU Environmental Law. Substantive Environmental Law’ (University of Iceland,

Reykjavik 2015) 11.

24

pillars of public participation were implemented at the EU level, even with a weak access to

justice pillar. This will be shown in chapter 4.

2.3.3 Stakeholder and public participation

To avoid inconsistency in further analysis of international and EU laws relevant to MSP on the

inclusion of public participation, it is relevant to outline the difference between the terms

‘stakeholder participation’ and ‘public participation’.

To begin with, and as mentioned in section 2.1.1 an MSP is defined by UNESCO as a

public and participatory process. This follows from UNESCO's Guidelines that one of the steps

on the establishment of an MSP is the organization of stakeholder participation.110 Then, the

question that arises is whether the public is also included in the term ‘stakeholders’ or they are

used as different terms?

Generally speaking, a stakeholder is usually defined as person who has stake, while

public refers to the community capacity of a citizen rather than in professional role.111 However,

in legislation the term ‘stakeholders’ is often used as an umbrella term that includes public as

well. Within the UNESCO's Guidelines on MSP, it refers to stakeholders as:

Individuals, groups, or organisations that are (or will be) affected, involved or interested

(positively or negatively) by MSP measures or actions in various ways.112

This definition implies that stakeholders include: everyone affected by an MSP decision,

dependent on the resources in the area of MSP, have or make legal claims/obligations over areas

or resources, actors of activities, have seasonal or geographic interest, environmental NGOs

and cultural advocacy group.113

The Millennium Ecosystem Assessment defines the term as follows:

Stakeholders include government bodies, local and indigenous communities, NGOs and even the private

sector.114

This is an example of how the term stakeholder is used as an umbrella term which also includes

the public, in this case in the form of NGOs. The CBD Voluntary Guidelines on Biodiversity

Inclusive Environmental Impact Assessment also uses an umbrella understanding of the term

110 UNESCO Guidelines on MSP (n 11) 18. 111 Merriam-Webster Dictionary <https://www.merriam-webster.com/> accessed 2 December 2016. See more

Barry Sadler, Jiri Dusik, European and International Experiences of Strategic Environmental Assessment: Recent

Progress and Future Prospects (Routledge 2016) 247. 112 UNESCO Guidelines on MSP (n 11) 45 113 ibid 44. 114 UNEP, Marine and coastal ecosystems and human wellbeing (n 4) 48.

https://www.merriam-webster.com/

25

‘stakeholders’.115

Such inconsistency with use of the terms ‘stakeholders’ and ‘public’ also takes place in

the EU laws. For example, the FMSP includes both terms even when it does not define

‘stakeholders’.116 This will be demonstrated in sections 4.7 and 4.9.2.

At the same time, one of the main legal instruments at the international arena on public

participation, the Aarhus Convention, does not mention the term ‘stakeholders’ and refers to

the term ‘public’ as one or more natural or legal persons in accordance to the national legislation

or practice, their associations, organisations or groups.117

In the current work, the term ‘public participation’ corresponds to the understanding

offered by the Aarhus Convention as non-affiliated citizens that are concerned about the state

of the environment, while it will also be empathised if the term stakeholder participation

includes public or not.


Public participation is suggested to deliver quality, efficiency and accountable decisions on

environmental matters, including decisions on MSP. Furthermore, the principle of public

participation in the environmental field is threefold and encompasses the access to

environmental information, public participation in environmental issues, and access to justice.

In the international arena, public participation was first promoted by the Rio Declaration in

1992. Then, it was developed by the Aarhus Convention. The latter was incorporated by the EU

legislation in the forms of Regulation and Directives. In fact, many laws instead of public

participation refer to more general term ‘stakeholder participation’ that also includes public.

This thesis suggests that every law relevant to MSP which falls under the scope of the Aarhus

Convention should reflect public participation to the prescribed extent.

2.4 Conclusion

One of the goals of the chapter was to answer the question, what is the MSP under the

international and EU laws? With the analysis, it was possible to demonstrate that an MSP is a

tool of marine governance that was developed to address the issues of fragmented sector-based

115 CBD (n 41) COP (2006) Decision VIII/28 ‘Impact assessment: Voluntary guidelines on biodiversity-inclusive

impact assessment’ box 1: Stakeholders and participation 14. Stakeholders are included beneficiaries of the project

- target groups making use of, or putting a value to, known ecosystem services which are purposefully enhanced

by the project; affected people – i.e. those people that experience, as a result of the project, intended or unintended

changes in ecosystem services that they value; general stakeholders – i.e. formal or informal institutions and groups

representing either affected people or biodiversity itself, future generations – ‘absent stakeholders’, i.e. those

stakeholders of future generations, who may rely on biodiversity around which decisions are presently taken. 116 FMSP (14) article 9. 117 ibid article 2(4).

26

regulations, clashing economic activities and the degradation of marine biodiversity. In fact, an

MSP offers a more inclusive and coherent framework than MPAs and ICZM. There is no

universal definition of an MSP. However, the most coherent one is offered by UNESCO. At

EU level, a similar definition was codified by the FMSP. MSP differs from other marine

policies by being ecosystem-based, integrated, adaptive, strategic, area-based and participatory.

Also, it can be suggested that sustainable development, EBA and MSP relate to each other as

objective, method, tool.

For the further assessment on the presence of the EBA, the chapter also aimed to identify

EBA and its relevance for MSP. To achieve an accurate result with regards to whether the

relevant to MSP laws contain the EBA, legal norms should reflect ecosystems integrity, aim to

balance between integration, conservation and sustainable use of biodiversity and human

activities shall be allocated in the least harmful for the ecosystems way.

This study also aims to verify the basic elements of public participation in the intentional

and EU laws relevant to MSP. As analysis of the legislation on public participation shown,

public participation in environmental matters includes three pillars: access to information,

participation in decision-making, and access to justice. The main legal instrument in the

international legal order for implementing public participation is the Aarhus Convention as well

as the EU's corresponding directives and regulations.

3. International law relevant to MSP

As outlined in the introduction, the study`s point of departure is the hypothesis that international

law is lacking detailed rules supporting EBA and public participation-based MSP. One of the

thesis` objectives includes the evaluation of international laws relevant to MSP with regards to

the inclusion of the EBA and the basic elements of public participation. To achieve these

objectives, the chapter outlines the principles of the international law relevant to the

development of the MSP. As MSP`s implementation does not take place in a legal vacuum,

international laws on the various maritime uses will also be considered.

3.1 The development of MSP

The MSP as a tool for the holistic regulation of diverse maritime uses is a recent development.

As mentioned in section 2.1.6.2, initially, the MSP was developed to respond to the degrading

biodiversity of the Australian Great Barrier Reef Marine Park in 1981 - one of the largest coral

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ecosystems in the world.118 The application of the MSP aimed to maintain the biological

diversity and ecological systems and manage the impacts of a booming touristic industry, as

well as to mitigate the effects of fishing, and the impacts and risks of land-based pollution and

shipping.119 The MSP for the Marine Park is divided into eight zones that range from general

use zone to preservation zone.120 When the plan was first established, the consideration for an

international legal framework on different maritime uses was also in place.

Since its introduction, in 1981 by national Australian legislation, the preparation of MSP

has only recently become an issue of international governance and has been addressed mainly

by non-binding legal instruments.

The first instruments are found in COP decisions under the CBD. For instance, for the

first time, the decision on the MSP was adopted by the COP 11 in 2012.121 This marked the

beginning of the dissemination and increased awareness about MSP among CBD parties.

Following this, at the COP 12, the MSP was recognised as a useful tool for applying the

ecosystem approach to marine and coastal management.122 It was then requested to enhance the

methods and tools for MSP at the national and regional level at the COP 14.123

3.2 UNCLOS as an umbrella framework for MSP

The UNCLOS provides the basic principles for maritime activities and defines the rights and

duties of the coastal states. With this in mind, this section begins by analysing the basic rights

and duties of the coastal states within the jurisdictional belts defined by UNCLOS and how

MSP can operate within each of them. The chapter then goes on to the discussion of the

international law on certain maritime activities, including fisheries, shipping, oil drilling,

renewable energy, pipelines and cables. Finally, these laws will be assessed with regards to the

reflection of EBA and basic elements of public participation.

3.2.1 UNCLOS jurisdictional belts and MSP

The UNCLOS divides the ocean and seas into several jurisdictional belts, including the internal

waters, the territorial seas, the contiguous zone and the EEZ.124 The jurisdictional belts are

118 ‘Australia (Great Barrier Reef) - UNESCO - IOC - Marine Spatial Management’ <http://msp.ioc-

unesco.org/world-applications/oceania/australia/great-barrier-reef> accessed 3 December 2016. 119 ibid. 120 ibid. 121 CBD (n 41), COP 11 (2012) Decision XI/18 section C ‘Marine Spatial Planning’. 122 ibid, COP 12 (2014) Decision XII/23 ‘Marine and coastal biodiversity: Impacts on marine and coastal

biodiversity of anthropogenic underwater noise and ocean acidification, priority actions to achieve Aichi

Biodiversity Target 10 for coral reefs and closely associated ecosystems, and marine spatial planning and training

initiatives’ para 18. 123 ibid para 17. 124 Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press 2012) 4.

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determined as a particular distance from a baseline125 that is drawn according to particular rules

of the UNCLOS.126 The establishment of MSP does not, however, necessarily take place in

every jurisdictional belt. Also, the UNCLOS provides the rights and obligations of the coastal

states and third states relating to these jurisdictional belts that need to be considered when

establishing the MSP.

In accordance with the UNCLOS, internal waters are those waters which lie landward

of the baseline from which the territorial sea is measured.127 The coastal state has full

sovereignty over its internal waters.128 Hence, within the internal waters, a coastal state can

establish an MSP without any consideration of the rights of the interested third state.

The next jurisdictional belt is the territorial sea which breadth is 12 nautical miles

measured from the baseline.129 The coastal state also has full sovereignty within the territorial

sea,130 but it has an obligation to provide the right of innocent passage for third states.131 The

right to innocent passage of the third states shall be considered while establishing an MSP. This

can be observed in the Belgian MSP plan where the MSP starts with the territorial sea. (see

previous section 2.1.4)

In any case, more maritime activities take place within the EEZ as clearly can be

observed from the case studies. This makes an application of the MSP for this jurisdictional

belt of even more relevance. The EEZ is an 188 nautical miles marine area beyond but adjacent

to the territorial sea.132 In the EEZ, the coastal state has rights of exploration, exploitation,

conservation and management of living and non-living natural resources, as well as the rights

to conduct other activities for the purposes of economic exploitation and exploration.133

Furthermore, the costal state has as well the freedom to establish artificial islands, installations

and structures, marine scientific research, as well as the obligation to protect the environment.134

At the same time, within the EEZ third states also have rights related to navigation and

overflying as well as the laying of submarine cables and pipelines.135 Due to the rights of thirds

states within the EEZ, the coastal state must, in its MSP, take the rights of third states into

account.

125 ibid 43. 126 UNCLOS (n 7) articles 5,7. 127 UNCLOS (n 7) article 8(1). 128 ibid article 2(1). 129 ibid articles 2-4. 130 ibid article 2(1). 131 ibid article 17. 132 ibid articles 55 and 57. 133 ibid article 56. 134 ibid article 60. 135 ibid article 58(1).

29

Finally, in the high seas136 and the Area137 no state may claim sovereignty, and hence

no state can unilaterally implement an MSP.138

3.2.2 Criticism toward the UNCLOS approach of delimitation

The UNCLOS jurisdictional belts are determined on the basis of the distance from the coast.139

Tanaka (2012) makes a reasonable criticism of such an approach which, in his view, emphasises

the failure to reflect the interactions between marine species, ecological conditions and for

ignoring the areas where marine ecosystems spread out.140 Once again, it is needed to be

highlighted that the key of the EBA is to focus on the ecological boundaries and integrity as

was mentioned previously in section 2.2.1.

Considering the relations between the EBA and the MSP as method and practical tool,

presented by Figure 1 in section 2.1.3, it can be suggested that if an MSP is based on the EBA,

it can possibly improve the UNCLOS' jurisdictional belts approach and attempt to achieve the

sustainable development of marine areas.

3.2.3 UNCLOS and EBA

The primary aim of the current section is to answer the following question: does the UNCLOS

include an EBA? It can be suggested that if the UNCLOS had its own instruments to regulate

all the maritime activities successfully then there would be no need to establish an MSP.

Examples below try to give the answer for the section question.

As presented in section 2.2.3, the EBA was first introduced into international law in

1972 by the Stockholm Declaration. Whereas the development of the UNCLOS took place

between 1972 and 1982, with the date of conclusion as 10 December 1982141 it likely that in

ten years the EBA did not gain sufficient popularity to be implemented within the UNCLOS.

In fact, the UNCLOS mentions the terms ‘ecosystems’ and ‘ecological balance’ only a

few times. For example, with Article 194 on measures to prevent, reduce and control pollution

of the environment, which states that:

136 ibid article 86(1) defines the high seas as all parts of the sea that are not included in the EEZ, in the territorial

sea or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. 137 ibid article 1(1) defines the Area as the seabed and ocean floor and subsoil thereof, beyond the limits of national

jurisdiction. 138 SM Daud Hassan et al. (n 9) 63. 139 Tanaka (n 124) 43. 140 Yoshifumi Tanaka, ‘The Changing Approaches to Conservation of Marine Living Resources in International

Law’ Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 71 (2011) 295. 141 ‘United Nations Treaty Collection’

<https://treaties.un.org/pages/showDetails.aspx?objid=0800000280043ad5> accessed 6 December 2016.

https://treaties.un.org/pages/showDetails.aspx?objid=0800000280043ad5

30

The measures shall include those necessary to protect and preserve rare or fragile ecosystems as well as

the habitat of depleted, threatened or endangered species and other forms of marine life.142

Furthermore, Article 145 on protection of the marine environment refers to:

The ecological balance between coastline and marine environment.143

However, this article only has relevance for the Area.

Such examples attest that the UNCLOS articles with regards to the protection and

preservation of the marine environment can be divided in two categories: zonal management

approach and specific type of factor damaging the environment, such as pollution.144

Yet, the preamble of the UNCLOS proclaims that:

The problems of ocean spaces are closely interrelated and need to be considered as a whole.145

Recalling the meaning of the EBA outlined in section 2.2.2, which is a strategy that promotes

conservation and sustainable use in an equitable way, it is possible to observer that it

corresponds to the UNCLOS aim stated in the preamble to a certain extent:

Equitable and efficient utilisation, conservation, protection and preservation of marine resources.146

Overall, it can be concluded that besides the preamble, the UNCLOS does not imply the

EBA legal norms. At the same time, the UNCLOS states that matters not regulated are to be

governed by the rules and principles of general international law.147 Moreover, Article 237

establishes the opportunity for the development of special conventions and agreements on the

protection and preservation of the marine environment that should be consistent with the

general principles and objectives of UNCLOS.148 However, the EBA cannot yet be called a

‘principle of general international law’ to be able to fill the legal lacuna of the UNCLOS. Given

the connection between the EBA and the MSP as method and tool, and also the fact that one of

the aims of the EBA is the conservation of marine resources, it can then be suggested that the

conclusion of the agreement implementing EBA-MSP under the UNCLOS seems to be legally

possible.149

142 UNCLOS (n 7) article 194(5). 143 ibid article 145 (a). 144 Tanaka (n 124) 329. 145 UNCLOS (n 7) preamble para 3 146 ibid para 4. 147 ibid para 8. 148 ibid article 237. 149 UNCLOS (n 7) articles 312 and 313 provides with the procedure for amendments of the UNCLOS. Such

amendments require consensus of the conference participants similar to the procedure of the adoption of the

UNCLOS. For the reason of the extremely complicated procedure on the UNCLOS amendments, this thesis

supports conclusion of the agreement as more efficient mechanism. To read more: Alan Boyle, ‘Further

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3.2.4 UNCLOS and public participation

As has been outlined previously, public participation is an important element for a successful

MSP. As the UNCLOS provides the legal framework for maritime activities that MSP shall

effectively allocate, it is necessary to verify whether UNCLOS contains rules on public

participation. As discussed in section 2.3, the Aarhus Convention provides the principles of

public participation, including access to information, participation in decision-making

processes, and effective access to judicial and administrative proceedings.

The UNCLOS only marginally reflects the principles of public participation. In fact, it

only reflects the principle of transparency of interrelationship between states but not public

participation as such.150 For example, in case of imminent danger for the marine environment,

aware state shall notify possibly affected states and competent international organizations.151 In

this case, states are entitled to jointly develop a contingency plan.152 Moreover, UNCLOS

obliges states to assess planned activities if they may cause pollution or harm to the marine

environment. States shall share the aforementioned reports to the relevant international

organizations which are to make reports available for states.153 However, such assessment

cannot be called EIA in its true meaning as it does not include public.

Finally, all examples mentioned above ensure transparency in interstate relations but not

in relation to the wider public.


Even though the preamble of UNCLOS conveys the meaning of the EBA, it fails to implement

it within the operational text. The preamble of UNCLOS is such that it oversells the

legislation,154 and the UNCLOS management relies on specific approaches to zones and species

that do not contain an integral and holistic EBA. Thus, it pays little attention to the integrity of

marine ecosystems and the adverse effect of maritime uses.

With regard to public participation, the UNCLOS, however, does not mention whether

the public could be involved in decision-making or should it have access to information or

justice. As a result, it gives MSP the opportunity to complement the current situation by

accounting for the missing EBA and basic elements of public participation.

Development of the Sea Convention: Mechanism for Change’ International and Comparative Law Quarterly

(2005) 54. 150 Yen-Chiang, Ocean Governance a Way Forward (Springer 2012) 41. 151 UNCLOS (n 7) article 198. 152 ibid article 199. 153 ibid article 205. 154 K Roach, ‘Uses and Audience of Preamble’ McGill Law Journal 47 (2001) 133.

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3.3 International law on selected maritime uses

All maritime uses can be considered from the MSP standpoint as somewhat operational material

or, rather, inputs. The outputs of applying MSP are the reduction conflicts across maritime uses,

the balance between development and conservation and the opportunity to address the

cumulative impact of various activities.155 In order to plan maritime activities, these activities

should first be identified, and then their frames should be understood and taken into account.

This is, in fact, similar to what a landscape designer does. First, he should know the

specifications of each object to place it more rationally and ergonomically.

To better understand the current context, the following section include a non-exhaustive

list of international regulations on selected maritime activities and the relevant Belgian or Dutch

MSP (Maps 1-2, section 2.1.4) will be cited as example.

3.3.1 Shipping and navigation

The UNCLOS as a framework convention sets the rules with regards to the right of third

countries to navigate within the jurisdiction of a coastal state. The International Maritime

Organization (IMO) was assigned as the competent authority when it comes to the safety of

navigation, shipping traffic and marine environmental protection.156 In any case, the coastal

state has full discretion to establish sea lanes and traffic separation schemes in its territorial sea

while only taking into consideration the recommendations of the competent international

organisation157 (as well as to consider the right of third states on innocent passage). Recalling

Map 1 of the Belgian MSP and Map 2 of the Dutch MSP (section 2.1.4), the shipping routes

are marked by turquoise colour and run through other maritime activities.

In the case when governments wish to establish or amend an existing route, they should

submit a proposal to the IMO for adoption. These measures are prescribed by the International

Convention for the Safety of Life at Sea (SOLAS).158 Similarly, the Convention on the

International Regulations for Preventing Collisions at Sea (COLREG) prescribes the conduct

of vessels when navigating through traffic separation schemes adopted by the IMO.159 These

regulations are the foundation for routing measures of ships in the EEZ and on the high seas.

Likewise, the MARPOL Convention covers the prevention of pollution of the marine

155 SM Daud Hassan et al. (n 9) 51. 156 EC ‘Legal aspects of maritime spatial planning. Framework service contract, FISH/2006/09 – LOT2’ [2008]

Final Report to DG Maritime Affairs and Fisheries 18. 157 UNCLOS (n 7) articles 22(3)(a) and 198. 158 International Convention for the Safety of Life at Sea (London, 01 November 1974, in force 25 May 1980)

UNTS 118 chapter 5. 159 Convention on the International Regulations for Preventing Collisions at Sea (London, 20 October 1972, in

force 15 July 1977) 1050 UNTS 16 rule 10.

33

environment by ships from operations or accidents.160 It offers two instruments to achieve this

outcome. The first designates special areas with a higher level of protection than other sea areas,

such as stricter vessel discharge restriction.161 The second such instrument is a particular

sensitive sea area (PSSA) which corresponds to the Area beyond national jurisdiction. The

PSSAs can be proposed as areas to be avoided in the traffic separation scheme.162 Such

measures pursue the conservation of fragile ecosystems.

Nevertheless, even acknowledging reflection of the conservational legal norms, the

current regulations for shipping and navigation do not entail or encompass either the EBA or

public participation. However, a successful MSP can make up for these missing elements if it

is based upon the EBA and allows for public participation. Also, an MSP is meant to engage

maritime uses in areas concerning shipping and navigation, and integrate maritime routes in the

least harmful way for marine ecosystems while maintaining their safety and also considering

the development of other uses.163 At the same time, MSP can offer changes to routes in order

to allocate sectors more efficiently.164

3.3.2 Fisheries

Legal regimes on the extraction of fisheries` resources are provided by UNCLOS and seek to

reconcile between exploitation and conservation. However, as outlined in section 3.2.1, rights

and obligations of the state differ in each jurisdictional belt. All natural resources in the

territorial sea or internal waters are under the sovereignty of the coastal state. Additionally, in

the EEZ, the coastal state has rights of exploitation and exploration, while at the same time it

also has the obligation of conservation.165 With regards to the high seas, all states enjoy the

freedom of fishing.

Correspondingly, as observed in Map 1 of the Belgian MSP (section 2.1.4), fishing is

permitted everywhere except in the vicinity of the windmills (due to the injunction on the use

of waterway), and it establishes four zones dedicated only for sustainable fishing depending on

160 International Convention for the Prevention of Pollution from Ships (London, 02 February 1973, in force 02

October 1983) 1340 UNTS 184. 161 ibid annexes I, II, IV, V, VI. 162 IMO, Revised Guidelines for the identification and designation of particular sensitive sea areas, adopted 01

December 2005, A 24/Res.982 sets the criteria to allow areas to be designated a PSSA if they fulfil a number of

criteria, including: ecological criteria, such as unique or rare ecosystem, diversity of the ecosystem or vulnerability

to degradation by natural events or human activities; social, cultural and economic criteria, such as significance of

the area for recreation or tourism; and scientific and educational criteria, such as biological research or historical

value. 163 The Nautical Institute and World Ocean Council, The Shipping Industry and Marine Spatial Planning. A

professional approach (2013) 6. 164 ibid 7. 165 Legal aspects of maritime spatial planning (n 156) 28.

34

the techniques used and also a zone for sustainable aquaculture.166

Fish, however, do not necessarily swim inside the jurisdiction of one state. With this in

mind, the Fish Stock Agreement was adopted to ensure the cooperation and enforcement with

regards to the conservation and management of straddling and highly migratory fish stocks.167

This agreement promotes the long-term sustainability of straddling fish stocks and highly

migratory fish stocks as well as their optimum utilisation.168 It is important to clarify that the

consideration of the Fish Stock Agreement for an MSP is limited since it mainly applies to the

areas beyond national jurisdiction, including high seas,169 while the MSP, for now, is mainly

set within national jurisdiction. However, Articles 6 and 7 on conservation management apply

for the areas within national jurisdiction.170 At the same time, if an MSP delivers positive

outcomes, then it probably will be established in the areas beyond national jurisdiction, and all

the legal norms of the Fish Stock Agreement will be relevant to the MSP. The verification of

legal norms of the Fish Stock Agreement on the inclusion of the EBA and public participation

is partially relevant as of now, with future potential to be relevant in the whole.

3.3.2.1 EBA

The Fish Stock Agreement adopts conservation and management measures for the species of

the same ecosystem.171 In this sense, it states the need to assess the impacts of fishing, other

human activities, and environmental factors on target stocks and species belonging to the same

ecosystem or associated with or dependent upon the target stocks.172 Furthermore, in the areas

beyond national jurisdiction, management and conservation measures should correspond to

biological unity and other biological characteristics of the stock, the fisheries, and the

geographical particularities of the region. Also, such measures shall avoid the harmful impact

on the living marine resources as a whole.173

It can be concluded that the Fish Stock Agreement reflects the EBA as its legal norms

166 Belgian Federal Public Service Health, Food Chain Safety and Environment, Brochure (n 26) 12 describes four

fishing zones as follows: in zone 1, fishing is allowed using gears which disturb sea bottom less and separate large

and small fish, in zones 2 and 4 are for testing new gears that reduce impact on the bottom of the sea and zone 3

is the most stringent and all techniques that disturb the seabed are banned. 167 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the

Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and

Highly Migratory Fish Stocks (New York, 04 August 1995, in force 11 December 2001) 2167 UNTS 3 (Fish Stock

Agreement). 168 ibid article 5(a). 169 ibid article 3. 170 ibid articles 6 and 7. 171 ibid article 5(e). 172 ibid article 5(d). 173 ibid article 7.

35

aim to balance conservation and management and also consider the integrity of marine

ecosystems.

3.3.2.2 Public Participation

It is necessary to identify the scope of the Fish Stock Agreement before entering the assessment

on the reflection of public participation. From the objectives of the Fish Stock Agreement, it

follows that its legal norms appear to fall under the scope of environmental information as it

regulates species that constitute biological diversity.174 However, it does not regulate any

specific activity that could harm the environment in accordance with the Aarhus Convention.175

Therefore, it can be understood that the Fish Stock Agreement is only supposed to ensure access

to information and access to justice in the case of failure to provide access to information.

In fact, it guarantees the transparency in the decision-making process and other activities

of sub-regional and regional fisheries management organisations and arrangements.176 It is

important that intergovernmental organisations and representatives of NGOs are granted the

opportunity to take part in meetings of the sub-regional and regional fisheries management

organisations and arrangements, even when their status of ‘observer’ does not mean active

participation.177 Furthermore, states shall establish a national record of fishing vessels

authorised to fish on the high seas. Additionally, access should be provided to the information

contained in that record and distributed to the interested state upon request.178

In conclusion, fisheries depend on the quality of the environment and the correct

management approach. Even when the Fish Stock Agreement enforces EBA for the

management of straddling and highly migratory fish stocks and while it includes norms on

public participation, it does so only marginally. It does not provide the requirements set by the

Aarhus Convention with regards to access to the information and justice but regulates

participation in the decision-making process for NGOs in status of ‘observer’. However, the

Fish Stock Agreement contributes only in a small way to the MSP, since it mostly applies for

the waters beyond national jurisdiction and focuses on one sector - fish species, and lacks an

integrated approach for other maritime activities.179 Overall, the Fish Stock Agreement

establishes some building blocks for an effective MSP.

174 Aarhus Convention (n 79) article 2(3)(a). 175 ibid article 6. 176 ibid article 12(1). 177 ibid article 12(2). 178 ibid article 18(3)(c). 179 Frank Maes, ‘The International Legal Framework for Marine Spatial Planning’ Marine Policy 32 (2008) 804.

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3.3.3 Exploitation of non-living natural marine resources including oil and gas

The UNCLOS provides general principles for the exploitation of marine-based natural

resources. According to the UNCLOS, the coastal state has sovereignty over natural resources

in the innermost part of the territorial sea.180 As mentioned earlier in section 3.2.1, in the EEZ

and continental shelf, the coastal state has rights that enable the exploration, exploitation,

conservation and management of natural resources of the seabed and its subsoil.181 For example,

in the Belgian MSP (Map 1, section 2.1.4) the exploitation of sand and gravel takes place only

in four specifically designated areas.182 As it mainly regulated by the UNCLOS, there is no

specific provision, including the EBA or public participation, specifically for the oil and gas

exploitation.

3.3.4 Power generation

According to international law, a coastal state has the right to produce energy from water,

currents and winds.183 Such activity may require the construction of artificial islands,

installations and structures and in fact, the UNCLOS empowers coastal states to do this.184

However, UNCLOS only limits these rights if such construction and practices interfere with

recognised sea lines essential to international navigation.185 Unfortunately, no legal norm

relates to marine ecosystems. Moreover, such installations may have safety zones of up to 500

metres to secure the constructions and navigation.186 Due to the present international objectives

in reducing CO2 emissions,187 the demand for the use of marine renewable energy will probably

expand, including the utilisation of wind energy.188 An MSP, therefore, provides an important

tool for addressing the interactions with other maritime uses and the marine environment.

Indeed, recalling again to the Belgian MSP, it allocates wind farms in a way that no shipping

traffic or fishing is allowed around which is also applicable for the plug at sea and energy

atolls.189 Referring to the inclusion of the legal norms on public participation by the specific

UNCLOS articles on power generation, they were not identified.

180 UNCLOS (n 7) article 2. 181 ibid articles 56 (1)(a) and 77. 182 Belgian Federal Public Service Health, Food Chain Safety and Environment, Brochure (n 26) 14. 183 ibid article 56. 184 ibid article 60. 185 ibid article 60(7). 186 ibid article 60(4). 187 Paris Agreement (n 76) article 4(1). 188 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the

use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and

2003/30/EC [2009] OJ L 140 (Renewable Energy Directive) endorses mandatory target of a 20 per cent share of

energy from renewable sources in overall Community energy consumption by 2020. 189 Belgian Federal Public Service Health, Food Chain Safety and Environment, Brochure (n 26) 8.

37

3.3.5 Dumping

The UNCLOS stipulates that coastal states are obligated to prevent, reduce and control pollution

of the marine environment by dumping.190 The Convention on the Prevention of Marine

Pollution by Dumping of Wastes and Other Matter (London Convention) prohibits dumping of

certain hazardous materials and sets the material obligation for the state to designate the proper

authority to issue the permits.191 The London Protocol linked to the Convention replaces the

material obligations of the London Convention and restricts all dumping except the permitted

list.192

The London Protocol is an advanced legal instrument and includes the precautionary

principle, and the polluter pays principle.193 It requires special areas to be designated for

dumping and they should be marked on a national spatial plan.194 At the same time, the EBA is

referred to only in the preamble by means of recognition that the actions necessary to prevent,

reduce and, where possible, eliminate pollution of the sea caused by dumping can and must be

taken without delay.195 This would help protect and preserve the marine environment and

encourage the management of human activities in such a manner that the marine ecosystem will

continue to sustain the legitimate uses of the sea and will continue to meet the needs of the

present and future generations.196 However, even considering the possible hazardous effect of

dumping, no legal norms on public participation were found in the above legal instruments.

3.3.6 Conservation

The main legal instrument relevant for the conservation of marine biodiversity, except some

legal norms provided by the UNCLOS, is the CBD. Its relevance relies on the fact that its

geographical scope covers national jurisdiction of components of biological diversity and even

areas beyond the national jurisdiction in the case of processes and activities.197 While the CBD

does not contain specific provisions on marine and coastal biodiversity, this topic has, since

190 ibid article 210 (1). 191 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 29

December 1972, in force 30 August 1975) 1046 UNTS 120 (London Convention) article 4. 192 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter

(London, 07 November 1996, in force 24 March 2006) 36 ILM 1 (London Protocol) article 4. Article 23 constitutes

that it will supersede the Convention. 193 ibid article 3(1) states that precautionary approach shall be applied to environmental protection from dumping

of wastes or other matter whereby appropriate preventative measures are taken when there is reason to believe that

wastes or other matter introduced into the marine environment are likely to cause harm even when there is no

conclusive evidence to prove a causal relation between inputs and their effects. Article 3(2) defines polluter pays

principles as obligations to bear the cost of pollution, to bear the cost of meeting the pollution prevention and

control requirements for the authorized activities. 194 Legal aspects of maritime spatial planning (n 156) para 215. 195 ibid preamble. 196 ibid. 197 CBD (n 41) articles 4(a) and (b).

38

1995, always been under the consideration of the COP.198 The CBD adopts measures ranging

from the establishment of systems of protected areas to the rehabilitation of degraded

ecosystems and the protection of natural habitats and species conservation in natural

surroundings under the national strategies, plans and programmes for the conservation and

sustainable use of biological diversity.199 However, as Article 22 of the CBD states that it shall

respect other agreements and the UNCLOS in application to the protection of marine

environment. Taking a look at the Belgian MSP (Map 1, section 2.1.4), it has a special area for

conservation, four sensitive subzones where environmentally friendly fishing is allowed and

also specially protected areas for birds.

As stated in section 2.2.2, the text of the CBD does not define an EBA, however, one of

the documents on COP V to the CBD holds such a definition. At the same time, the CBD

principles support the integrity and sustainable use of the biodiversity which is in line with the

objectives of the EBA.200

As regards public participation, even when the legal norms of the CBD are only

subjected to the first pillar of public participation, access to environmental information, and

thus partially to the third (follows from the Aarhus Convention), it only includes an article on

the EIA in case the project can cause a threat to biological diversity while it does not mention

the public.201 This can be explained by the fact that the CBD is from 1992, while the concept

of three-fold public participation has only been legally developed since 1998.

The CBD Secretariat has published and disseminated Voluntary Guidelines on

Biodiversity Inclusive Environmental Impact Assessment,202 which stress the necessity to

conduct impact assessments in every project, programme, plan and policy that may have

potential negative impacts on biodiversity. However, it only refers to public involvement as a

prerequisite for effective EIA203 while it ignores the other two pillars.204

198 CBD (n 41) COP 2 (1995) Decision II/10 ‘Conservation and Sustainable use of Marine and Coastal Biological

Diversity’. 199 ibid articles 6-8. 200 ibid article 1. 201 ibid article 14. 202 CBD (n 41) COP 8 (2006) Decision VIII/28 ‘Impact assessment: Voluntary guidelines on biodiversity-inclusive

impact assessment’. 203 ibid Box 1: Stakeholders and participation 14. 204 ibid article 35 says that public involvement, including the full and effective participation of indigenous and

local communities, is important in various stages of the process and particularly at this stage. The concerns and

comments of all stakeholders are adequately considered and included in the final report presented to decision

makers. The process establishes local ownership of the proposal and promotes a better understanding of relevant

issues and concerns. In the current case term ‘stakeholders’ also includes public concerned.

39

3.3.7 Selected maritime uses, the EBA and public participation – a comparison

Table 1 lists maritime uses that were analysed in sections 3.3.1 – 3.3.6, their international

regulations, and provides information on the reflection of the EBA and public participation as

conditions for an effective MSP. Where present, public participation is subdivided into three

sectors that correspond to three pillars: (I) access to environmental information, (II)

participation in decision-making process, and (III) access to justice. At the same time, as

prescribed by the scope of the Aarhus Convention, some of the legal instruments should include

all three pillars and some of them not. Those norms that reflect public participation in

accordance with the Aarhus Convention are marked in blue, while norms that do not correspond

the prescribed scope are marked in grey.

Maritime use International

law other

than the UNCLOS

EBA Public participation

Navigation and Shipping

SOLAS

COLREG

MARPOL

Not present I Not present

II

III

Fishery Fish Stock

Agreement

Article 5(e): conservation and

management measures for the species of the same ecosystem.

Article 5(d): the measures

above needs to assess the

impacts of fishing, other

human activities and

environmental factors on

targets stocks and species

belonging to the same

ecosystem or associated with

or dependent upon the target stock.

I Not present

II Article 12(2): NGOs

concerned can take part

in meetings if the

fisheries management

organisations as observers.

III Not present

Oil and gas - Not present I Not present

II

III

Power generation

- Not present I Not present

II

III

40

Not match with scope of the

Aarhus Convention

Match with the scope of

the Aarhus Convention

Dumping London

Convention

London Protocol

Preamble of the London

Protocol: EBA is mentioned

only in the by means of

recognition of the adverse

effects of dumping. Dumping

is prevented in order to protect

and preserve the marine

environment and to manage

human activities in such a

manner that the marine

ecosystem will continue to

sustain the legitimate uses of

the sea and will continue to

meet the needs of present and future generations.

I Not present

II

III

Conservation CBD Article 1 of the CBD:

objectives of the CBD are

conservation of biological

diversity, the sustainable use of its components.

COP Decision V/6 defines the EBA

Voluntary Guidelines on

Biodiversity-Inclusive Impact

Assessment

Article 31(c): assessment

should apply the ecosystem

approach and actively seek

information from relevant

stakeholders and indigenous

and local communities.

Article 33(c): environmental

management plans and

strategies contained in the

environmental impact

statement should consider

regional and transboundary

impacts, taking into account the ecosystem approach.

I Not present

II Voluntary Guidelines

on Biodiversity-

Inclusive Impact

Assessment

Article 33(c): the public

to understand the

proposal and its

impacts on the

community and

environment, and

provide an opportunity

for comments on the

proposed action for

consideration by

decision makers.

Article 35: comments

of all stakeholders (in

this case stakeholders

include public) are

adequately considered

and included in the

final report presented to decision makers.

I Not present

II

III

Table 1 Selected uses for the MSP and reflection of the EBA and public participation

41


Analysed above maritime uses, such as navigation and shipping, fisheries, the exploitation of

non-living natural marine resources including oil and gas, power generation and dumping do

not represent the full list of maritime uses regulated at the international level. Besides

UNCLOS, there are additional legal sources in place for their regulation. However, even within

the UNCLOS framework, legislation is highly fragmented. Each use is regulated somewhat in

a vacuum in which other activities are not considered. Sectoral legislations are not harmonised

and sometimes even duplicate each other (e.g. MPA and MARPOL`s PSSA). As shown in

Table 1, the legal frameworks for these activities, except for the Fish Stock Agreement, the

CBD with its supplementary documents and the London Protocol do not consider either the

EBA or public participation. For these reasons, an MSP is recognised to complement the

missing elements of an EBA and public participation to make every maritime use efficient and

durable and maintain a healthy status of marine ecosystems.

3.4 Other relevant instruments

The UNCLOS establishes frames and borders for implementing the MSP, even when an EBA

is missing in the regulation of marine resources and activities. But as was mentioned before,

UNCLOS refers to other instruments that can complement it and are used to regulate the marine

environment.

3.4.1 MSP and assessment procedures

EIA and Strategic Environmental Assessments (SEA) are procedural instruments necessary for

the successful implementation of an MSP. These procedures ensure that all risks and pitfalls of

each maritime use are mitigated before the implementation of the MSP by evaluating the

location of each activity in relation to others.

Generally, these tools are based on the estimation of environmental impacts and

economic costs and benefits, as well as the predictions of the changes in environmental quality

that would occur if the proposed action would take place.205 While a SEA applies to public

plans and programmes, the EIA applies to development projects. These instruments make

public participation an inherent stage of the process. Furthermore, due to the transboundary

nature and complications related to clean-up actions in marine space, both, SEA and EIA,

should be an obligatory element of the MSP. In spite of its importance, at the international level,

there are very few instruments that support the development of EIA and SEA.

205 SM Daud Hassan et al. (n 9) 65.

42

As mentioned in section 3.2.4, the UNCLOS forces an assessment of the potential

effects of the activities that may cause substantial pollution of, or significant changes to, the

marine environment.206 However, the EIA under UNCLOS is different from that recognised by

the international community207 because it is missing the key element of public participation. In

fact, it is conducted within the state jurisdiction in which the state is the sole judge of the

environmental effects within its territory.

Another instrument that promotes the EIA is the Espoo Convention.208 This convention

advocates for compulsory EIA for certain activities at an early stage of planning. Also, the

Espoo Convention puts into place the obligation for states to notify and consult other states in

cases where projects are likely to have a significant adverse environmental impact across

boundaries. In fact, the Espoo Convention only contains legal norms on public participation in

decision-making process, 209 while it is missing the norms on access to information and justice.

This can also be explained by the early date of its adoption in 1991. In any case, the Espoo

Convention has been amended two times, but no changes have been made with regards to public

participation.

The SEA procedure was reflected by recently adopted at the international level Kiev

Protocol. The SEA requires parties to evaluate the environmental consequences of their official

draft plans and programmes.210 It is relevant to mention that the Kiev Protocol is consistent with

the Espoo Convention but only refers to the public participation during the SEA for plans and

programmes.211

To conclude, even when the Espoo Convention and the Kiev Protocol do not fully

contain all the elements of public participation, if complemented by the CBD Voluntary

Guidelines, they promote public participation in both private projects and public plans and

206 UNCLOS (n 7) article 206. 207 FAO, Irrigation and drainage paper ‘Environmental impact assessment of irrigation and drainage projects

(1995) Chapter 3: EIA Process 53 <http://www.fao.org/docrep/V8350E/v8350e06.htm> accessed 8 December

2016. 208 UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February

1991, in force 10 September 1997) 1989 UNTS 309 (Espoo Convention). 209 ibid article 2(2) states that establishment of the EIA that permits public participation, article 2(6) stipulates that

obligation for the party of origin to provide opportunity to the public in the areas likely to be affected to participate

in EIA procedures, article 3(8) constitutes that public is provided with the opportunity for making comments or

objections on the proposed activity, article 4(2) establishes that submission comments or objection from the public

and submission of them to the competent authority, and article 6 guarantees that comments shall be taken into

account. 210 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a

transboundary Context (Kiev, 21 May 2003, in force 11 July 2010) (Kiev Protocol). 211 ibid articles article 8 states that each pasty shall ensure early, timely and effective opportunities for public when

all options are open, in the strategic environmental assessment of plans and programmes. Article 11(1)(c) indicates

that comments received as the result of public participation shall take due account when a plan or programme is

adopted.

43

programmes at the national and transboundary scale. As the MSP encompasses multiple

economic activities that may adversely affect fragile marine ecosystems, the EIA and SEA are

essential elements, and their regulations form the legal framework for the MSP.

3.4.2 MSP and UNICPLOS

Besides the hard international law212 mentioned before, the United Nations Open-ended

Informal Consultative Process on Ocean and the Law of the Sea213 (UNICPOLOS-16) has been

dedicated to the integration of the three dimensions of sustainable development: environmental

factors, socioeconomic factors and factors relating to the ocean. In this case, the MSP was

discerned as an integrated approach to the management of ocean activities that limits the

cumulative effects of human activities and helps maintain the health of the marine ecosystem.214

Moreover, the EBA was affirmed as beneficial for the conservation, sustainable use and

management of the marine resources.215 It was also noted that the successful implementation of

an MSP should be an inclusive and transparent process that involves the private sector and

scientific area.216 It can be said that the recognition of the MSP by the UN General Assembly

is an achievement for the development of the Law of the Sea.

3.5 Overview of law supporting MSP

The table below lists the international laws that form the premises for the MSP. Even when

most of the laws in the table do not refer to the MSP directly, they regulate the maritime uses

that shall be allocated by the MSP. It is relevant to mention that the EBA and public

participation are prerequisites for the successful MSP and therefore are also included in the

table.

Public participation is divided into three sectors that correspond its three pillars: (I)

access to environmental information, (II) participation in the decision-making process, and (III)

access to justice. Those norms that reflect public participation in accordance with the Aarhus

212 Kenneth W Abbott and Duncan Snidal ‘Hard and Soft Law in International Governance’ International

Organization 54(3) (2000) 421 refers to hard law as to legal sources that have binding power for the participants,

while soft law are quasi-legal instruments that do not have binding power and lack enforcement mechanism and

often have recommendation character. 213 Resolution adopted by the United Nations General Assembly, Results of the review by the Commission on

Sustainable Development of the sectoral theme of ‘Oceans and seas’: international coordination and cooperation,

A/RES/54/33, 24 November 1999 established the United Nations Open-ended Informal Consultative Process on

Oceans and the Law of the Sea (UNICPOLOS) in order to facilitate the annual review by the General Assembly,

in an effective and constructive manner, of developments in ocean affairs and the law of the sea. 214 Report of the United Nations General Assembly on the work of the United Nations Open-ended Informal

Consultative Process on Oceans and the Law of the Sea at its sixteenth meeting, A/70/78,16 April 2015 para 23. 215 ibid. 216 ibid para 61.

44

Convention are marked in blue, while norms that do not correspond the prescribed scope are

marked in grey.

Name Reference to the

MSP

Inclusion of the EBA Inclusion of public

participation

The UNCLOS Not present Only in the preamble:

problems of the ocean

space are closely

interrelated and need

to be considered as a

whole.

I Not present

II

III

CBD Not present Article 1: objectives

of the CBD are

conservation of

biological diversity

and the sustainable

use of its

components.

COP 5 Decision V/6

defines the EBA

I Not present

COP

Decisions

11&12

MSP is

recognised as a

useful tool for

applying the

ecosystem

approach to

marine and

coastal

management.

II Voluntary Guidelines on

Biodiversity-Inclusive

Impact Assessment

Article 33(c): the public

to understand the

proposal and its impacts

on the community and

environment, and

provide an opportunity

for comments on the

proposed action for

consideration by

decision makers.

Article 35: comments of

all stakeholders (in this

case stakeholders

include public as well)

are adequately

considered and included

in the final report

presented to decision

makers.

III Not present

CBD

Voluntary

Guidelines on

the EIA and

SEA

Not applicable Article 31(c):

assessment should

apply the ecosystem

approach and actively

seek information

from relevant

stakeholders and

45

indigenous and local

communities.

Article 33(c):

environmental

management plans

and strategies

contained in the

environmental impact

statement should

consider regional and

transboundary

impacts, taking into

account the

ecosystem approach.

Fish Stock

Agreement

Not present Article 5(e):

conservation and

management

measures for the

species of the same

ecosystem.

Article 5(d): the

measures above needs

to assess the impacts

of fishing, other

human activities and

environmental factors

on targets stocks and

species belonging to

the same ecosystem

or associated with or

dependent upon the

target stock.

I Not present

II Article 12(2): NGOs

concerned are granted

the opportunity to take

part in meetings of the

sub-regional and

regional fisheries

management

organisations and

arrangements as

observers.

III Not present

London

Convention

London

Protocol

Not present Preamble of the

London Protocol:

actions necessary to

prevent, reduce and

eliminate pollution of

the sea caused by

dumping would help

to protect and

preserve marine

environment and

encourage human the

management of

human activities in

such a manner that

I Not present

II

46

the marine ecosystem

will continue to

sustain the legitimate

uses of the sea and

will continue to meet

the needs of present

and future

generations.

III

SOLAS

Not present Not present I Not present

II

III

COLREG

Not present Not present I Not present

II

III

MARPOL Not present Not present I Not present

II

III

Aarhus

Convention

Not relevant Not relevant I Articles 4-5 provide for

access to information.

II Articles 6-8 enable

public participation in

regards to activities

having hazardous effect

on environment; in the

process of preparation of

environmental plans,

programmes, policies;

regulations.

III Article 9 guarantees

access to justice.

Espoo

Convention

Kiev Protocol

Not relevant Not relevant I Not present

II Article 2(2) of the Espoo

Convention:

establishment of the EIA

that permits public

participation.

Article 2(6) of the Espoo

Convention: obligation

for the party of origin to

provide opportunity to

the public in the areas

likely to be affected to

participate in EIA

procedures.


Convention: public is

47

provided with the

opportunity for making

comments or objections

on the proposed activity.


Convention: submission

comments or objection

from the public and

submission of them to

the competent authority.

Article 6 of the Espoo

Convention: comments

shall be taken into

account.

Articles 8 of the Kiev

Protocol: public

participation in the

strategic environmental

assessment of plan and

programmes.

Article 11 of the Kiev

Protocol: comments

shall be taken due

account in the final

decision.

III Not present

UNGA Report

(2015)

Para 23: MSP is

an integrated

approach to the

management of

ocean activities

that limits the

cumulative

effects of human

activities and

helps to maintain

the health of

marine

ecosystem.

Para 23: EBA is

beneficial for

conservation and

sustainable use of

marine resources.

I Not present

Para 61: involvement of

private sector and

scientists. II

III

Resolution of

the General

Assembly

(2015),

establishing

UN SDGs

Not applicable 14.2

By 2020, sustainably

manage and protect

marine and coastal

ecosystems to avoid

significant adverse

impacts, including by

strengthening their

I

16.10 Ensure public

access to information

and the protection of

fundamental freedoms.

48

resilience, and by

taking action for their

restoration in order to

achieve healthy and

productive oceans.

15.9

By 2020, integrate

ecosystem and

biodiversity values

into national and

local planning,

development

processes, poverty

reduction strategies

and accounts.

II

16.7 Ensure responsive,

inclusive, participatory

and representative

decision-making at all

levels.

III Not present

Table 2 International legal framework on the MSP

3.6 The need for reform

The MSP is a recent development in the international arena. However, its relevance relies on

the fact that marine space is a transboundary system and there is a constant declining tendency

of the marine ecosystem and also the need to reduce conflict between maritime uses. Then,

there is an urgent need for universal binding standards on integrated marine management that

includes the EBA and public participation. The UNCLOS is a product of its time (the

negotiating process began in the early 1970s), and it obviously lacks the provisions on the

consideration of the EBA and elements of public participation. While it is extremely difficult

to amend the UNCLOS, Article 237 permits the implementation of the specific agreement on

the protection and preservation of the marine environment. Thus, it can be advised to conclude

the Agreement on MSP that includes the EBA and public participation by setting the

international universal standards on the allocation of maritime uses in the least harmful way for

the marine ecosystems while permitting the sustainable use of marine biodiversity considering

its prosperity and development as priority and at the same time legalising the active involvement

of the public. Finally, every international legislation on the marine use is to be amended for the

compliance with the future agreement on MSP that entails the EBA and public participation.


Aarhus Convention



49

3.7 Conclusion

The aims of this chapter have been to introduce international laws relevant to the MSP and

evaluate them on reflection of the EBA and public participation. Although legal regulations on

maritime uses have a long history, the MSP was first mentioned in the 2012 COP Decision to

the CBD. It was developed to improve the current situation in marine space with disappearing

ecosystems and clashing maritime uses. Also, the MSP was mentioned as an integrated tool for

applying the EBA to marine and coastal management in the Report of UN General Assembly.

However, COP decisions and Reports of the UN General Assembly mentioning MSP are

considered to be soft law instruments.

It is acknowledged that a successful MSP shall be based upon EBA and allows for public

participation. Among substantial legal instruments which are applicable for the regulation of

maritime uses, only the CBD includes EBA legal norms, however, public participation norms

present rather poorly. The following instruments, perhaps partially except the Fish Stock

Agreement and the London Protocol failed to include the legal norms on EBA and public

participation: the UNCLOS, MARPOL, SOLAS and COLREG. Nevertheless, procedural

regulations, such as the Aarhus and Espoo Conventions, encourage public participation which

is vital to MSP as it aims to reconcile conflicts between multiple activities and actors and build

a solid framework for the MSP.

Overall, it can be concluded that international framework on the MSP is only emerging,

mainly in the form of non-binding legal instruments. This proves that the hypothesis with

regards to international law was correct. Then, it is possible to say that the current international

law is, indeed, lacking detailed rules to support the EBA and public participation-based MSP.

4. MSP framework in the EU

The objectives of this chapter are to analyse the EU´s MSP legal framework and find out if it

reflects EBA or principles relating to public participation. The chapter begins by outlining the

development of EU´s MSP legislation, including EEA law, and after that the main features of

the legal framework will be discussed. As in previous chapters, several other laws on maritime

uses having relevance for MSP will be described. As highlighted in the introduction, it will be

argued that EU´s MSP framework reflects norms on EBA and principle of public participation.

50

4.1 Background and development

In the EU, the MSP has been perceived as a policy tool with the potential of promoting good

and integrated decision-making in various sectors of maritime policy.217 As shown in the

timeline below, the development the MSP legislation in the EU began in 2006 in the form of

soft law and culminated in the form of a Directive.

In the beginning, the EU only promoted the MSP through common principles and

guidelines.218 It was not until 2006, in the Green Paper on Maritime Policy, that the spatial

planning of marine areas was mentioned as part of a framework to reach sustainable

development by reconciling the economic, social and environmental dimensions of the

exploitation of the seas and oceans.219 The MSP is meant to allow various activities to coexist

along coastlines and eliminate uncertainties for investors.220

Later, the MSP was recognised as a fundamental tool for the sustainable development

of marine areas and coastal regions by the 2007 Blue Book of the Commission on the Integrated

Maritime Policy.221 This was followed by a Road Map on the implementation of MSP in

2007.222 It outlines key principles related to the implementation of MSP and defines further

steps to undertake.223 However, the Road Map has not brought forward consistent results.

217 Antonia Zervaki, ‘Introducing Maritime Spatial Planning Legislation in the EU: Fishing in Troubled Waters?’

MarSafeLaw Journal 1 (2015) 103. 218 ibid. 219 COM (2006) 275 final, Volume II – Annex. Green Paper ‘Towards a future Maritime Policy for the Union: A

European vision for the oceans and seas’. 220 ibid. 221 COM (2007) 575, final ‘Communication from the Commission to the European Parliament, the Council, the


the European Union’. 222 COM (2008) 791, final ‘Communication from the Commission. Road Map for Maritime Spatial Planning:

Achieving Common Principles in the EU’. 223 ibid. Among key principles are: (1) recognition of the characteristics of the area and type activity; (2) definition

of objectives; (3) transparency of planning; (4) stakeholder participation; (5) coordination within MS; (6) ensuring

the legal effect of MSP; (7) cross-border cooperation and consultation; (8) incorporation of monitoring and

evaluation in the planning process; (9) coherence between MSP and Integrated Coastal Management; and (10)

strong data and knowledge base.

2006 2007 2013 2011 2010 2008 2014

Green

Paper

Blue

Book

Road

Map

COM

771

Stakeholder

consultation

Directive

proposal

FMSP

Figure 5 Timeline of policy development on MSP in the EU Figure 3 Timeline of policy development on MSP in the EU

51

According to a 2010 Communication, some of the MS have followed different approaches,

while in other cases no significant result has been achieved.224

Taking into consideration the fragmented legal and institutional setups of the MS

relating to the various maritime activities, the EU began to prepare legislation in the field of

MSP. Eventually, the Commission submitted a proposal for a new MSP directive in 2013,225

which was adopted and the FMSP came into force in September 2014.226

4.2 Legal difficulties in the planning of marine areas

The FMSP directive proposal introduced not only measures relating to MSP but also measures

regulating ICZM.227 However, the TFEU does not make any references to the planning of

marine areas228 that challenged the conformity of such planning with the principles of

subsidiarity229 and proportionality.230 With this in mind, the FMSP was limited to the spatial

planning of the marine area as the MS did not reach an agreement on EU legislation in coastal

areas (ICZM) which is under the MS competence.231 To demonstrate the application of MSP,

it is relevant to recall The Dutch MSP (Map 2, section 2.1.4) which applies to the non-

administratively classified territorial sea (coastal areas) and the EEZ. The difference in

regulation of the MSP and the ICZM has its roots in legal basis which will be further described.

224 COM (2010) 771, final ‘Communication from the Commission to the European Parliament, the Council, the

European Economic and Social Committee and the Committee of the Regions’. Maritime Spatial Planning in the

EU – Achievements and Future Development’ 6. 225 COM (2013) 133, final ‘Proposal for a directive of the European Parliament and of the Council establishing a

framework for maritime spatial planning and integrated coastal management’ (Directive proposal). 226 FMSP (n 14). 227 Directive proposal (n 225). 228 TFEU (n 87) article 174 only mentions territorial cohesion. 229 ibid article 5. The principle of subsidiarity aims to ensure that action at the EU level is justified in light of the

possibilities available at the national, regional or local level. It ensures that the EU does not take action (except in

the areas of the exclusive competence), unless it is more effective than actions taken at national, regional or local

levels. Eight national parliaments submitted negative reasoned opinions, questioning the conformity of the

proposed act with the subsidiarity principle. Conformity with the subsidiarity principle was also raised in the

European Parliament, among European Political Parties as well as in the form of a Parliamentary Question to the

Commissioner. See Question for written answer to the Commission, Rule 117, Patricia van der Kammen

[Parliamentary Question] E-010797-13, 23 September 2013. Commissioner Damanaki’s reply argued that the draft

Directive was in line with the subsidiarity principle since it consisted of provisions of a procedural nature and did

not prescribe MS options in terms of the content of the MSP process. See answer given by Ms Damanaki on behalf

of the Commission [Parliamentary Question] E-01078, 25 November 2013. 230 ibid. The principle of proportionality requires that any action by the EU should not go beyond what is necessary

to achieve the objectives of the TFEU. The Committee of the Regions openly questioned (a) the EU’s competence

in this issue, making reference to a breach of the proportionality principle, and (b) the legislative procedure to be

followed, whether the proposed act should be adopted according to the ordinary legislative procedure or according

to article 352 TFEU requiring unanimity on behalf of the Council. See Committee of the Regions, Proposed

Directive for Maritime Spatial Planning and Integrated Coastal Zone Management (Opinion) NAT-V-030, 103rd

Plenary Session, 7-9 October 2013. 231 FMSP (n 14) preamble para 17 mentions that it will not interfere with MS’ competence for town and country

planning and that it does not apply in cases member states apply terrestrial planning to coastal waters or parts

thereof.

52

4.2.1 Legal basis

As mentioned above, the TFEU does not refer to marine spatial planning. On the other hand,

Article 192.2 TFEU holds a reference to town and country planning. This raises the question if

Article 192.2 can be a legal basis for the FMSP? To be able to answer the question it is necessary

to analyse EU`s legislative procedure. The choice of legal basis reflects the right of the

European Parliament (EP) to participate in the decision-making process.232 The ordinary

legislative procedure (OLP) is generally used for decision-making, but only in particular cases

the special legislative procedure (SLP).

These two legislative procedures can be both applicable for environmental legislation.

Accordingly, Article 192(1) TFEU on the OLP, is used in order to reach the environmental

objectives laid out in Article 191. When relying on the OLP decisions are taken jointly by the

Council and the EP after consultation with the Economic and Social Committee and the

Committee of the Regions.233 The form of these actions can be regulation, directive, decision,

recommendation and opinion as presented in Article 288 TFEU.

The SLP is however a derogation from the OLP and the EP is only consulted.234 The

SLP is applicable to sectors that are sensitive to the MS,235 including measures that affect town

and country planning.236 For example, SLP would be applicable for the ICZM. One might

therefore assume that the SLP should be also used for the FMSP. However, this assumption

would be wrong because marine areas are a transboundary resource and hold great importance

not only for a particular MS, but also for the whole EU.237 For example, important elements for

the EU are the marine ecosystems, fishing grounds, marine protected areas as well as maritime

infrastructures, such as cables, pipelines, shipping lanes, oil, gas and wind installations that

transcend national borders. Thus, the planning of maritime uses fall within the realm of OLP.238

Correspondingly, according to the preamble of the FMSP, the MSP does not limit the MS`s

authority for the town and country planning.239

4.2.2 Multiple legal basis

Even though the TFEU does not particularly mention the planning of marine areas, a directive

regulating such measures still needs a legal basis. As outlined in Figure 4, the FMSP is based

232 L Kramer (n 23) 71. 233 TFEU (n 87) article 192(1). 234 ibid article 192(2). 235 N de Sadeleer, EU Environmental Law and the Internal Market (Oxford University Press 2014) 153. 236 TFEU (n 87) article 192(2)(b). 237 ibid 6. 238 ibid 6. 239 FMSP (n 14) preamble para 17.

53

on the TFEU`s existing policies, falling under the category of shared240 and exclusive241

competences. Among FMSP`s legal basis are Article 43(2) TFEU, on fulfilment of the

objectives of the common fisheries policy with its conservation part falls under the exclusive

competence of the EU, Article 100(2) TFEU on sea transport, Article 192(1) TFEU on the

organisation of environmental policy, and Article 194(2) TFEU on the energy policy fall under

the shared competence of the EU and MS. With this in mind, it is essential to note that all of

these basis rely upon the OLP.

According to court practice, act, including regulations and directives, should be based

on a sole legal base even if it is covering the different objectives, one of which should be defined

as the main objective and the other as incidental.242 However, if the act has limited equal

objectives, the European Court of Justice of the European Union (CJEU) accepts that such

measures should rest on the corresponding legal basis and compatible legislative procedure.243

This could be the reasons why the planning of coastal areas (ICZM) are excluded from the

scope of the FMSP as such planning measures could be requiring the SLP in line with Article

191(2).


Due to the transboundary nature of marine areas, and their importance for the EU, marine spatial

planning legislation is based on several TFEU legal basis, including Article 43(2), 100(2),

240 TFEU (87) article 4. 241 ibid article 3 conservation of marine biological resources under the common fisheries policy is the only

exclusive competence of the EU in the field of the MSP. 242 Case C-91/05 Commission v Council [2008] ECR I-3651 para 73. 243 N de Sadeleer (n 235) 151.

Figure 4 MSP legal basis under TFEU and division of competence

54

192(1) and 194(2), which are all relying on the OLP. To avoid conflicts of legislative

procedures, the ICZM was excluded from the Directive scope as it can potentially affect the

town and country planning that falls under the SLP procedure. Furthermore, the FMSP clearly

states that it is not to interfere with MS`s competence for the town and country planning.

4.3 The connection between MSP, IMP and MSFD

The maritime spatial planning (MSP) is only a part of the holistic marine framework of the

Integrated Maritime Policy (IMP). It was presented by the Blue Book in 2007 as a cross-cutting

policy aiming to achieve the full economic potential of the seas while maintaining a harmony

with the marine environment.244 In fact, the IMP offers an integrated approach to all sea-related

EU policies. Among such policies are Blue growth, Marine data and knowledge, MSP,

Integrated maritime surveillance and Sea basin strategies.245

The environmental pillar, which implements the EBA for all of these policies, became

the MSFD.246 (see section 2.2.4) This framework directive aims to ensure GES of the EU's

marine waters by 2020 and to protect the natural resources based upon which marine-related

economic and social activities depend.247 Moreover, the GES ensures the quality of the MSP.

Then it is important to mention that the MSFD defines the GES as:

A situation where the environmental status of marine waters is such that they provide ecologically

diverse and dynamic oceans and seas that are clean, healthy and productive in their natural state. It also

describes a situation where the use of the marine environment is at a level that is sustainable, thus

safeguarding the potential for uses and activities by current and future generations.248

With this in mind and as prescribed by the MSFD, the GES for marine regions is determined

on the basis of qualitative descriptions.249

Besides the environmental pillar, the IMP encompasses the economic pillar - Blue

growth, which refers to the long term strategy to support sustainable growth in the marine and

244 COM (2007) 575, final ‘Communication from the Commission to the European Parliament, the Council, the


the European Union’. 245 ‘Integrated maritime policy’ <https://ec.europa.eu/maritimeaffairs/policy_en> accessed 30 January 2017. 246 MSFD (n 68). 247 ibid article 1(1). 248 ibid article 3(5). 249 ibid annex I identifies the following qualitative descriptors for determining good environmental status: (1)

biodiversity is maintained, (2) non-indigenous species do not adversely alter the ecosystem, (3) the population of

commercial fish species is healthy, (4) elements of food webs ensure long-term abundance and reproduction, (5)

eutrophication is minimised, (6) the sea floor integrity ensures functioning of the ecosystem, (7) permanent

alteration of hydrographical conditions does not adversely affect the ecosystem, (8) concentrations of contaminants

give no effects, (9) contaminants in seafood are below safe levels, (10) marine litter does not cause harm, (11)

introduction of energy (including underwater noise) does not adversely affect the ecosystem.

https://ec.europa.eu/maritimeaffairs/policy_en

55

maritime sectors as a whole.250 It aims to achieve smart, sustainable and inclusive growth, as

laid out by the Europe 2020 strategy. Correspondingly, the strategy includes the development

of sectors with high potential for sustainable jobs and growth, marine knowledge, MSP,

integrated maritime surveillance and sea basin strategies.251 Simultaneously, it also interacts

with the MSFD by means of innovation that can bring significant environmental benefits.252

Given these points, it is clear that the implementation of MSP by individual states

provides an opportunity to develop maritime sectors sustainably and achieve GES.253 At the

same time, MSP encourages facilitation of the Blue growth through ensuring confidence and

certainty for investors.254

As shown in Figure 5, the IMP encompasses the quality of environmental support

ensured by the MSFD that in turn requires that GES is to be achieved through strategies that

include the MSP. Meanwhile, Blue growth is an economic pillar that influences all above-

mentioned policies, including the MSP. Ideally, the MSFD and Blue growth should also interact

and promote each other. Whereas, the MSP facilitates the delivery of Blue growth through high

levels of employment, productivity and social cohesion that include the promotion of a more

competitive, resource-efficient and green economy,255 it also aims to achieve GES promoted by

the MSFD. The extent to which the FMSP balances the promotion of GES and Blue growth

will be analysed later in this research.

250 ‘Blue Growth’ (Maritime Affairs - European Commission, 28 September 2016)

<http://ec.europa.eu/maritimeaffairs/policy/blue_growth_en> accessed 26 December 2016. 251 ibid. 252 COM (2014) 254 final of 8 May 2014 ‘Innovation in the Blue Economy: realising the potential of our seas and

oceans for jobs and growth’ 2. 253 FMSP (n 14) preamble para 2. See more A Gilbert et al. ‘Marine spatial planning and Good Environmental

Status: a perspective on spatial and temporal dimensions’ Ecology and Society 20 (1) (2015) 64. 254 ibid preamble para 5. 255 ibid preamble para 4.

Figure 5 Relation between IMP, MSFD and MSP

56

4.4 MS` obligations under FMSP

The FMSP obliges the MS to produce maritime spatial plans256 for identification of the spatial

and temporal distribution of relevant existing and future activities.257 However, in the making

of the plans, the FMSP permits a great level of discretion to the MS.258 For instance, Article 4

of the FMSP states that MSP shall be developed in accordance with institutional and governance

levels determined by the MS.259 However, there is a reasonable fear that lack of harmonisation

in the scale of planning may negatively affect the integration of multiple sectors as well as the

cooperation between MS.260

4.4.1 Definition of the MSP

Maritime spatial planning (MSP) according to the FMSP is defined as:

A process by which relevant MS authorities analyse and organise human activities in marine areas to

achieve ecological, economic and social objectives. 261

The MSP is defined as a process due to the reason of the lack of direct legal basis.262 (see

previously section 4.2) The Commission defended the FMSP on the grounds that even when it

does not create a new policy, it is a process to support existing policies.263 From the definition

of the MSP, it can be observed that the FMSP aims to achieve a balance between ecological,

economic and social elements. However, the term ‘maritime’ has an anthropogenic meaning

which from one perspective is fair since the main task of MSP is to determine mostly human-

made uses and humans are the ultimate benefactors. From another perspective, such an

anthropocentric definition downsizes the role of the marine environment. As discussed in

sections 2.1.1 and 2.1.2, international law defines MSP as ‘marine’ not ‘maritime’. Therefore,

it is still unclear whether or not the FMSP could theoretically reconcile the man versus nature

conflict, at least when it comes to the terms mentioned above.

4.4.2 The geographical scope of the FMSP

As mentioned before, the ICZM was not included in the FMSP. However, the preamble of the

FMSP argues that the MSP should take into account all land-sea interactions.264 Also, FMSP

256 ibid article 4(1). 257 ibid article 8(1) and as prescribed in preamble para 14 adoptive management ensures refinement and further

development s experience and knowledge increase, taking into account the availability of data and information at

sea basin level to implement that approach. 258 SM Daud Hassan et al. (n 9) 191. 259 FMSP (n 14) article 4 (3). 260 SM Daud Hassan et al. (n 9) 191. 261 FMSP (n 14) article 3 (2). 262 Antonia Zervaki (n 217) 106. 263 Directive proposal (n 225) 5. 264 FMSP (n 14) preamble para 16.

57

aims to integrate the maritime dimension of some coastal uses and their impacts.265

Figure 6 shows that MSP applies to the marine waters266 and to the coastal waters267

which are not included in a town and country planning. The figure also shows that MSP outer

limits are usually the same as the outer limits of the EEZ’s. In this sense, it is of interest to recall

the Belgian and the Dutch MSP plans which apply from the baseline of the territorial sea and

follow the outer limits of the EEZ.

IW internal waters

TSB territorial sea baseline

MW marine waters

CS continental shelf

CW coastal waters that not under

MS`s territorial planning

EEZ exclusive economic zone

HS high sea

TS territorial sea MSP marine spatial planning

CZ contiguous zone

265 ibid. 266 ibid article 2(1) and MSFD article 3 defines marine waters as the seabed and subsoil on the seaward side of the

baseline from which the extent of territorial waters. 267 Water Framework Directive (n 45) article 2(7) defines coastal waters surface water on the landward side of a

line, every point of which is at a distance of one nautical mile on the seaward side from the nearest point of the

baseline.

Figure 6 Geographical application of MSP under FMSP

TSB

CW TS

CZ EEZ

CS HS

IW

MW

MSP

58

Figure 7 Planning documents in marine and coastal areas

4.4.3 Diversity of planning documents and legislation

Bearing in mind that the FMSP encourages land-sea interactions, therefore it is necessary to

outline some other planning tools within the EU. Figure 7 illustrates their diversity and

geographical application.

268

Town and country planning is only regulated by the national legislator and covers not only

terrestrial areas but freshwater as well. As no particular directive is in force on the ICZM,

coastal areas and their planning is regulated exclusively by the MS. However, few EU soft legal

instruments, such as Recommendation of the EP and of the Council concerning the

implementation of ICZM in Europe269 and the Protocol to the Barcelona Convention on

Integrated Coastal zone Management are also relevant even though the latter is only applicable

to the Mediterranean area.270

From these, it can be said that the MS should develop national strategies that apply to

coastal areas. It is relevant to remember that marine strategies apply to marine waters and are

regulated by the MSFD.271 At the same time, river basin management plans – regulated by the

Water Framework Directive – cover surface waters that include coastal waters and ground

waters.272 Finally, according to the Floods Directive, the MS should have a flood risk

management plan based on information about territories that could potentially be covered by

268 Luca Marangoni DG MARE, EC ‘The interlink between MSFD and MSP’ 10 November 2014 9. 269 Recommendation of the European Parliament and of the Council of 30 May 2002 concerning the

implementation of Integrated Coastal Zone Management in Europe [2002] OJ L 148. 270 Protocol on Integrated Coastal Zone Management in the Mediterranean [2009] OJ L 34. 271 MSFD (n 68) article 5. 272 Water Framework Directive (n 45) article 4.

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22009A0204(01)

59

water,273 including coastal areas.274 However, besides a general obligation to consider land-sea

interaction, the FMSP does not oblige the consideration of other planning tools that affect

coastal waters. At the same time, as follows from the Dutch Policy Document on the North Sea,

all above-mentioned laws are considered in the Dutch MSP.275

4.4.4 Transposition period

According to the FMSP, the MS had to provide until 18 September 2016 the necessary

implementation of legislation and designate a national authority.276 For those MS that had

already implemented the MSP before the adoption of the FMSP, they were obliged to ensure

that MSP legislations are in conformity with the FMSP Directive.277 Correspondingly, the MS

are obliged to develop MSP no later than 31st March 2021.278

Moreover, the FMSP requires a thorough review of the plan at least every ten years.279

This time criterion is the evidence of the presence of an adaptive management approach that

aims to encourage the systematic learning of a given ecosystem through experimentation,

monitoring and evaluation.280 As Frazao Sanntos and others (2014) mention, the adaptive

management in the MSP ensures the incorporation of changes over time to reflect

environmental and technological changes, a new economic climate, information and data.281

This approach also provides the review and adaption of planning objectives to ensure the

suitability and sustainability of the project.282

The table below illustrates the progress of EU MS in the implementation of these

obligations as of 18th of December 2016. It is important to remember that the FMSP is not

applicable to the landlocked EU MS283 that include Austria, Czech Republic, Hungary,

Luxemburg and Slovakia. Thus, only 23 MS have an obligation to transpose the Directive.

Country Transposition of

FMSP

Designation of

authority

Establishment of

MSP

Belgium + + +

Bulgaria + + -

273 Directive 2007/60/EC of the European Parliament and of the Council of 23 October 2007 on the assessment

and management of flood risks [2007] OJ L 288 (Floods Directive) article 7. 274 ibid 2(1). 275 Policy Document on the North Sea 2016-2021 (n 29) 21. 276 FMSP (n 14) article 15(1). 277 ibid article 4(6). 278 ibid article 15(3). 279 ibid article 6(3). 280 Frazao Sanntos et al. ‘How sustainable is sustainable marine spatial planning? Part II – Portuguese experience’

Marine Policy 49 (2014). 281 ibid. 282 ibid. 283 FMSP (n 14) preamble para 27.

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Croatia + + +

Cyprus - + -

Denmark + + -

Estonia + + +

Finland + + +

France - - -

Germany + + +

Greece - + -

Ireland + + +

Italy - - -

Latvia + + +

Lithuania + + +

Malta + + +

Netherlands + + +

Poland + + +

Portugal + + +

Romania - + +

Slovenia + + +

Spain + + -

Sweden + + +

United Kingdom + + +

Total 18/23 21/23 7/23

Table 3 MS` progress towards implementation obligations under FMSP 284

Given this information, it can be concluded that 23 MS with access to marine areas have

achieved progress towards the obligations imposed by the FMSP. Likewise, 18 MS have

managed to transpose the FMSP into national legislation before 18 September 2016, and 21 MS

have designated a national authority. Finally, only 7 MS are ahead of the deadline of 31 March

2021 with regards to the implementation of a national maritime spatial plan.

4.4.5 MS procedural obligations

The MSP is presented in the form of the Directive, and thus, it shall not interfere with MS`s

competence to establish the format and the content of the plan.285 However, such autonomy is

conditioned with certain requirements found in the FMSP.286 Accordingly the national plan

shall

(1) be based on the EBA and should take into account environmental, economic, social and safety

aspects,287

(2) cover land-sea interaction,288

284 ‘Countries Overview’ (European MSP Platform, 22 June 2016) <http://www.msp-platform.eu/countries-

overview> accessed 18 December 2016. 285 FMSP (n 14) article 4(3). 286 ibid article 4 (6). 287 ibid article 6(2)(b). 288 ibid article 6(2)(a).

61

(3) reflect MSP transboundary cooperation that includes third countries289 and stakeholder

engagement.290

Furthermore, the MS has a great margin of appreciation when preparing the plan. The

Directive however provides certain guidelines on the identification of different interests in the

planning areas assessed by the MS.291 They are free to balance marine interests as long as it is

in accordance with international and EU law.292

Regarding the content of the MSP, the FMSP provides a non-exhaustive list of uses to

be considered by an MS. Among provided uses are aquaculture and fishing areas; installations

and infrastructure for the exploration, exploitation and extraction of minerals, aggregates, oil,

gas and other energy resources; installations and infrastructure for the production of energy

from renewable sources; maritime transportation routes and traffic flows; military training

areas; nature and species conservation sites and protected areas; raw material extraction areas;

scientific research; submarine cable and pipeline routes; and tourism with underwater cultural

heritage.293 As expected, there are EU acquis in most of the above-mentioned sectors,294 and

some of them will be discussed in section 4.9 due to their relevance to the subject in hand.

Moreover, the majority of these policies represent a new generation that sets quantified and

strict time frames that might bring forward difficulties in the implementation of MSP.295


The FMSP does not impose new, substantial obligations for the MS in relation to the different

maritime uses. In fact, it only requires the establishment of a plan that integrates already existing

uses by meeting specific requirements. Meanwhile, the MS has a great freedom on the

substantive requirements of MSP. MS are obliged to transpose the FMSP into national

legislation, designate authority and develop the MSP. As observed, the majority of MS have

fulfilled these tasks. As of the 18th December 2016, there have been no cases in the CJEU with

regards to non- or wrong transposition of the Directive. This is most likely due to the fact that

the MS has to transpose to FMSP for only a few months.

289 ibid article 6(2)(f)(g). 290 ibid article 6(2)(d). 291 ibid article 5(3). 292 SM Daud Hassan et al. (n 9) 193. 293 FMSP (n 14) article 8(2). 294 ibid preamble para 9. 295 Antonia Zervaki (n 217) 110.

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4.5 The EEA-EFTA states

It is relevant to note the application of the maritime spatial planning and the FMSP and MSFD

for the EEA-EFTA states. However, before doing so, brief outline of the main features of the

EEA Agreement will be given. Hereafter the European Economic Area (EEA) was established

by the EEA Agreement that came into force in 1994. Its main objective was to expand the

internal market of the EU to the three participating EEA-EFTA states, Iceland, Liechtenstein

and Norway by creating a homogeneous EEA.296 Currently, the EEA is comprised of the 28 EU

MS, and three participating EEA-EFTA states.

4.5.1 Material scope of the EEA Agreement

To ensure the homogeneity, the relevant EU market legislation is made part of the EEA

Agreement. Most of these rules relate to the four freedoms: the free movement of goods, capital,

services, people, and also the competition rules.297 Moreover, the EEA Agreement prescribes a

close cooperation in few horizontal matters, including social policy, consumer protection,

environment, company law and statistics298 as they influence the four freedoms to some extent.

Some of these provisions are in a way connected to the competition rules as they regulate

undertakings and certain economic operators.299 On the other hand, the EEA Agreement does

not cover the EU´s common agriculture or fisheries policies, nature conservation, the customs

union, the common trade policy, the common foreign and security policy, justice and home

affairs, harmonised taxation or the Monetary Union.300

To become valid EEA law, EU acts, by a decision of the Joint EEA Committee, are

incorporated into an Annex to the EEA Agreement.301 Only those acts that are considered to be

relevant to the EEA, and falling within the material scope of the EEA Agreement, are

particularly assessed and after that, if they are relevant, incorporated into the Agreement. Then,

the act needs to be made part of the relevant national legislation, which is an internal matter and

not subject to the EEA rules.302

Some EU acts stipulate ‘text with relevance to the EEA’. However, the absence or

presence of such a reference does not prescribe its inclusion or non-inclusion in the EEA

296 Agreement on the European Economic Area (Oporto, 02 May 1992, in force 01 January 1994) UNTS 1801

(EEA Agreement). 297 ibid article 1(2). 298 ibid. 299 Carl Baudenbacher, The Handbook of EEA Law (Springer 2016) 89. 300 EEA Agreement (n 296). See more ‘EEA Agreement. European Free Trade Association’

<http://www.efta.int/eea/eea-agreement> accessed 19 December 2016. 301 ibid articles 7 and 102. 302 Protocol 35 of the EEA Agreement.

63

Agreement.303 The reference may be present if the act supports the achievement of a

homogeneous EEA304 and is based on the concept of the four freedoms, the competition rules

and horizontal provisions.305

With this in mind, it is relevant to discuss the attempts to incorporate the MSFD into the

EEA Agreement which, as outlined in section 2.2.4, holds the requirements for achieving GES

in marine waters. Although having some EEA relevance, the MSFD is not a valid EEA law.

The reason is mainly the results of political concerns due to the strategic role of marine waters

for some EEA-EFTA states. Norway`s main argument for keeping the MSFD out of the EEA

is based on its view of the EEA Agreement´s geographical scope. According to Norway, the

EEA Agreement`s geographical scope only includes Norwegian land territory and its internal

and territorial waters.306 Therefore, as Norway argues, the EEA Agreement does not apply to

either the EEZ, the continental shelf or the high seas.307

However, the geographical scope of the MSFD includes all marine waters under the

sovereignty and jurisdiction of the MS,308 and as illustrated in Figure 6, the MSFD covers the

EEZ and the continental shelf.

4.5.2 Geographical scope of the EEA Agreement

Article 126 of the EEA Agreement defines the agreement´s territorial scope. Accordingly, it

applies to the territories of Iceland, Liechtenstein and Norway.309 As Liechtenstein is a

landlocked state, laws applicable to territorial and marine waters are not of any relevance.

According to public international law theory and practice, the traditional definition of

territory includes land (terra) and the adjacent territorial waters of a state and the airspace

above.310 On the other hand, the continental shelf and the EEZ are excluded from the definition

even though coastal states have some sovereign rights over these areas. The definition rests

upon the international law principle of appurtenance that imposes upon a coastal state certain

303 Carl Baudenbacher (n 299) 53. 304 The principle of homogeneity is one of the main principle of the EEA. EEA Agreement articles 102(1) and 3

stipulate that in order to guarantee the legal security and the homogeneity of the EEA, the EEA Joint Committee

shall take a decision concerning an amendment of an Annex to this Agreement as closely as possible to the adoption

by the Community of the corresponding new Community legislation with a view to permitting a simultaneous

application of the latter as well as of the amendments of the Annexes to the Agreement. To this end, the Community

shall, whenever adopting a legislative act on an issue which is governed by this Agreement, as soon as possible

inform the other Contracting Parties in the EEA Joint Committee. Furthermore, The Contracting Parties shall make

all efforts to arrive at an agreement on matters relevant to this Agreement. 305 Carl Baudenbacher (n 299) 53. 306 Norwegian Ministry of Foreign Affairs, Meld.St (2012-2013) Report to the Storting (White Paper) The EEA

Agreement and Norway`s other agreements with the EU’ 13, 14. 307 ibid. 308 MSFD (n 68) preamble para 1. 309 EEA Agreement (n 296) article 126(1). 310 Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 117.

64

obligations, and is concurrently conferring upon it certain rights arising out of the sovereignty

that a state exercises over its marine areas. See also the Fisheries case where the principle was

provided considerable strength.311

EU law reflects the development of public international law. Article 355 TFEU does

on the other hand not include a reference to the EEZ or the continental shelf.312 However,

according to CJEU case law whenever the TFEU confers the law making competence to the

EU, it may cover marine areas insofar that the MS have similar rights under the public

international law.313 According to the principle of the UNCLOS,314 the relevant MS have a right

to exploit fisheries resources within their own EEZ. On the other hand, the EU is competent to

regulate their use under the Common Fisheries Policy (CFP).315 According to EU law, the MS

have both exclusive rights in marine zones but at the same time a duty to preserve natural

resources.316 Hence, the EU law applies to the conservation of natural resources in all marine

areas where MS exercises exclusive rights.317 This includes the internal waters, the territorial

sea, the EEZ and the continental shelf.318

It is relevant to note that Council Regulation 2913/92 ‘Customs Code’ is in line with the

above-mentioned principle. Its definition of good wholly obtained or produced in one country

includes products taken from the seabed or beneath the seabed outside territorial waters, if that

country has, for the purpose of exploration, rights to such soil or subsoil.319 According to CJEU

case law (C-347/10 Salemink) a MS which takes advantage of the economic rights to prospect

and/or exploit natural resources on a part of the continental shelf which is adjacent to it, cannot

avoid the application of the EU law provisions designed to ensure the freedom of movement of

persons working on such installations located in these areas.320 Hence, EU law applies to

311 Fisheries case (The United Kingdom v Norway), Order of 10 January 1951, ICJ Rep 8 para 160. 312 TFEU (n 87) article 355. 313 Case 3,4 and 6/76 Kramer and others [1976] ECR 1279 paras 30-33, the decision states that rule-making

authority in the Community ratione materiae also extends, insofar as the MS have similar authority under public

international law. 314 UNCLOS (n 7) article 56(1)(a). 315 T Markus, European Fisheries Law. From Promotion to Management (European Law Publishing 2009) 32. 316 Guidelines for the establishment of the Natura 2000 network in the marine environment. Application of the

Habitats and Birds Directives [2007] 18. 317 ibid. 318 ibid. 319 Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code [1992]

OJ L 302 article 23. 320 Case C-347/10 A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen [2012]

not yet reported para 35-36. The judgement was extended by the opinion of AG Cruz Villalon who stated that:

(55) The determining factor in defining the scope of EU law is, therefore, the extent of the competences lawfully

exercised by the Member States within the framework of international law. EU law will apply to whatever extent

the Member States exercise official authority in the areas of competence conferred on the Union, subject to

conditions established by EU law and irrespective of the source of the entitlement to the State competence

transferred to the EU; in other words, irrespective of whether the source of the entitlement was State sovereignty

65

activities that take place outside MS territorial waters, because the MS have sovereign rights

over the EEZ and the continental shelf.

The principle is as well part of the EEA law. In relation to the question whether the

Norwegian nationality requirements for the crew on board fishing vessels were applicable,321

ESA322 argued that the Norwegian rules violated the rules of the free movement of persons.

Norway’s counter-argument was that the EEA law did not apply to the fishing vessels’ activities

as they took place outside the territorial waters of Norway.323 ESA, on the other hand, stated

that the employment relationship of fishermen had a sufficiently close link with the EEA

territory, and therefore, it applied outside the territorial waters of Norway.324

Several EU acts, which are affecting activities on the continental shelf, have been made

part of the EEA Agreement without any particular exceptions, such as the Hydrocarbon

Directive,325 Regulation on conditions for access to the gas transmission networks326 and the

Utilities Directive.327

Thus, even though Norway has the general position that the scope of the EEA

Agreement does not include the continental shelf and the EEZ, the applicability of the EEA

Agreement must be determined on a case-by-case basis. The Norwegian argument on the EEA

Agreement`s geographical scope is however rather weak. Then, to ensure the full effect of the

MSFD, the focus should be on the material scope of the legislation.

itself (as recognised and protected by international law) or the conferral by the international community of a

sovereign right.

(60) The power to exploit the resources of the continental shelf implies an exclusive competence to carry out

activities for the utilisation of the area’s resources using labour which must necessarily be subject to the

employment legislation of the coastal State.

(61) In this particular respect, namely for the purposes of exercising its competence in the field of employment,

the coastal State is entitled to exercise sovereignty on an equivalent basis, in principle, to the basis on which it is

entitled to regulate in that field within its own territory. 321‘Letter of formal notice to Norway, annex to Ot.prp.nr 99 (2005-2006)’

< https://www.regjeringen.no/no/dokumenter/otprp-nr-99-2005-2006-/id190602/sec12> accessed 4 January 2017. 322 EFTA Surveillance Authority (ESA) insures that Iceland, Liechtenstein and Norway respect their obligations

under the EEA Agreement in the same way that the EU MS are supervised by the European Commission. 323 ibid. 324 ibid. 325 Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for

granting and using authorizations for the prospection, exploration and production of hydrocarbons [1994] OJ L

164 (Hydrocarbon Directive). 326 Regulation (EC) No 1775/2005 of the European Parliament and of the Council of 28 September 2005 on

conditions for access to the natural gas transmission networks [2005] OJ L 289. 327 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by

entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC

[2014] OJ L 94 (Utilities Directive).

66

4.5.3 Material scope of the MSFD

The legal basis of the MSFD is Article 192(1) TFEU (ex 175(1) TEC), setting OLP in order to

achieve the environmental objectives of the Article 191 TFEU.328 Article 191 TFEU aimed to

strengthen the environmental protection. Article 73 of the EEA Agreement mirrors the text of

Article 130r of the Single European Act, now Article 191 TFEU, which sets out the objectives

and principles of the EU´s environmental policy.329 Thus, the EEA Agreement incorporates the

same environmental objectives. Such a connection between the EEA Agreement and the TFEU

is determined by the principle of homogeneity.

The MFSD is based on Article 192(1) TFEU. Considering that the EEA Agreement

contains environmental policy legal norms, it is possible to conclude that the MSFD is relevant

for the coastal EEA-EFTA states – Iceland and Norway.330 Moreover, the achievement of GES

affects all offshore economic operators and thus triggers the rules of the competition. From this,

it is clear that offshore economic operators from Iceland and Norway are in more privileged

positions than economic operators of other EU MS. Finally, the non-incorporation of the

MSFD, as it influences rules of competition, into the EEA Agreement goes against

homogeneity.331

The following argument in favour of the relevance of the MSFD is that most of the EU´s

environmental legislation are part of the EEA Agreement.332 This includes Directive

2004/35/EC on environmental liability333 and EIA Directive.334 The material scope of the EEA

does not however include traditional nature conservation. Therefore, the Birds Directive

74/409/EEC335 and Habitats Directive 92/43/EC336 are not the part of the material scope of the

EEA Agreement.

328 TFEU (n 87) article 191 states that environmental objectives and principles. 329 Single European Act, 17 February 1986 [1987] OJ L 169. 330 ‘Offshore Safety Directive – EEA Relevance and Geographical Applicability’ Memo from ALT Law Firm of

13 of March 2013 5 <http://bellona.org/assets/sites/2/2015/06/fil_Offshore_EEA_relevance1.pdf> accessed 4

January 2017. 331 Carl Baundenbacher (n 299) 89. It is important to note that principle of homogeneity is only obligatory for the

legal acts affecting four freedoms and rules of competition and other horizontal laws affecting foresaid rules. And

there is no obligation for the EEA to develop other laws in parallel with the rules of EU. 332 ibid. 333 Environmental Liability Directive (n 104) was implemented by the point 1a of the Annex XX to the EEA

Agreement by Joint Committee Decision No 2013/C 372/05 of 19 December 2013 [2013] OJ L 289, and EEA

Supplement No 16, 55. 334 EIA Directive (n 93) (previously Directive 2011/92/EU of the European Parliament and of the Council of 13

December 2011 on the assessment of the effects of certain public and private projects on the environment) was

implemented by the point 1a of Annex XX to the EEA Agreement by Joint Committee Decision No 230/2012 of

7 December 2012 [2013] OJ L 81, and EEA Supplement No 18, 38. 335 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the

conservation of wild birds [2009] OJ L 20/7 (Birds Directive). 336 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and

flora [1992] OJ L 206 (Habitats Directive).

67

The environmental legislation that is currently covered by the EEA Agreement also

supports the EEA relevance of the MSFD. The connection between incorporated directives and

MSFD can be explained by the crucial meaning of the EIA and Environmental Liability

Directives for the goal of MSFD - achieving GES of the marine waters. Accepting the horizontal

environmental legislation and avoiding the substantial results in a legal incoherence.

In conclusion, the MSFD is relevant for the EEA-EFTA states: Iceland and Norway,

and should be incorporated into the EEA Agreement that follows from the environmental goal

of the MSFD and its influence on the competition rules. It supports the protection of the marine

environment - the sphere that is regulated by the EEA Agreement. Also, the MSFD interacts

with legislation that is already part of the EEA Agreement, particularly Directive 2004/35/EC

on environmental liability and Directive 2011/92 on EIA. Finally, the Norwegian argument for

the non-inclusion of MSFD, based on the territorial scope of the EEA Agreement, is not very

well-founded as other implemented legislation, such as Hydrocarbon and Utilities Directives,

covers the continental shelf which is outside of the territory.

4.5.4 The FMSP and the EEA Agreement

As of December 2016, the FMSP has not been incorporated into the EEA Agreement. Instead,

coastal EEA-EFTA states keep their traditional consistency of avoiding the EU legislation

which applies to marine waters. Moreover, the FMSP is not marked as ‘text with EEA

relevance’ in comparison with the MSFD. The following argument offers some explanation:

the FMSP does not create a new policy but only integrates existing policies, and thus the legal

norms do not affect the four freedoms and rules of completion which are necessary for

incorporation into the EEA Agreement.

As mentioned earlier, in section 4.2.2, the Directive is based on four legal basis: Article

43(2) on the common fisheries policy, Article 100(2) on sea transport, Article 192(1) on the

legislative procedure toward environmental goals, and Article 194(2) on energy policy.

However, the main constraint is that the common fishery policy states that the conservation of

marine biological resources is an exclusive competence of the EU. Moreover, the fisheries

policy is excluded from the scope of the EEA Agreement, and, the implementation of the FMSP

is based on the European Maritime and Fisheries Fund.337 For these reasons, EEA-EFTA states

are consistent, and FMSP has very few chances to be incorporated into the EEA Agreement.

337 Directive proposal (n 225) 25 and FMSP (n 14) preamble para 6.

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4.6 The FMSP and the EBA

As suggested in the hypothesis in the introduction, the EU´s legislation on MSP considers the

EBA as a core principle. It was discussed in section 2.1.3 that ideally, the purpose of MSP is to

enable the maximum utilisation and maximum protection of biodiversity and ecosystems. This

section examines whether or not the FMSP comprises sufficient tools for the EU MS to reach

such a balance.

According to the FMSP, the concept of the MSP is defined as the process by which the

relevant MS authorities analyse and organise human activities in marine areas to achieve

ecological, economic and social objectives.338 Antonia Zervaki (2015) argues that the definition

rests on three premises: MSP is a process, MS have control of implementation, and lastly, that

MSP pursues environmental, economic and social welfare.339 Nevertheless, these premises for

achieving balance seem to be diluted by other provisions of the Directive.

The text of the FMSP identifies the purposes of the MSP and the necessity to apply the

EBA. The preamble of the FMSP refers to MSP as ‘a tool for an integrated and transboundary

approach’, while the EBA is described as ‘a contributor to the sustainable growth of maritime

and coastal economies and the sustainable use of marine and coastal resources’, but not as a

tool for the promotion of biodiversity.340 Again, MSP is supposed to ‘provide greater

confidence and certainty for investors’.341 Furthermore, the main purposes of MSP are given as

‘the promotion of sustainable development, the identification of maritime space for different

maritime activities and the management of conflicts in marine areas’.342

It is evident that the application of the EBA itself does not have a clear objective to

promote marine biodiversity, even when this is most likely reached as a by-product of achieving

the GES under the MSFD. Recalling the meaning of EBA as described in section 2.2, it aims

to achieve the balance between conservation and sustainable use. In the FMSP context, the

conservation of marine ecosystems is one of the uses, equal to fishery, energy, tourism, etc.,

with the ultimate goal to promote economic growth of maritime sectors in a sustainable way

and by prioritising Blue growth.

At the same time, the FMSP contains few provisions on environmental matters when

MSP is acknowledged as ‘a tool to reduce anthropogenic impact, climate change, natural

338 ibid article 3(2). 339 Antonia Zervaki (n 217) 106. 340 FMSP (n 14) preamble para 3. 341 ibid preamble para 5. 342 ibid preamble para 19.

69

hazards, erosion and the increasing pressures on marine ecosystems.’343 MSP is also referred

to as ‘a tool to support EBA in the management of human activities in order to achieve GES.’344

Overall, it can be concluded that the FMSP does not reflect the balance of the social,

ecological and economic objectives while the MSP was supposed to deliver equilibrium

between them. Finally, in the context of the IMP (see previously section 4.3), the FMSP

prioritises Blue growth more than the GES. Such an imbalance reflects the discussion around

the sustainable development that was mentioned in section 2.1.3.

This evidence suggests that MSP under the FMSP should not be considered as being an

ecosystem-based but rather as an integrated-use tool.345 At the same time, it is likely that when

marine ecosystems become limited in their service delivery, such imbalanced MSP will be

replaced by an MSP with a focus on marine biodiversity.

4.6.1 FMSP and comparison with the 12 Malawi principles of the EBA

To illustrate the extent to which the FMSP includes EBA, the text of FMSP is compared with

the twelve Malawi principles of the EBA. The principles were defined under the CBD during

one of the CBD COP.346

№ Principle Absence/

Presence

Relevant article

1 Management is a social

choice

+ Article 2(4): plans should be developed

and produced in accordance with the

institutional and governance level

determined by MS. They are also free to

determine the format and content of the

plan => Every MS develops its plan in

accordance with own interest.

Article 5(3): FMSP is without prejudice

to the competence of MS in determining

how the different objectives are reflected

and weighted in their maritime spatial

plan or plans.

Preamble para 20: given the differences

between various marine regions and sub-

regions and coastal zones, it is not

appropriate to prescribe in detail the form

343 ibid preamble para 13. 344 ibid preamble para 22. 345 Frazao Sanntos et al. ‘How sustainable is sustainable marine spatial planning? Part I – Linking the concepts

Marine Policy 49 (2014) 62. 346 See more in section 2.2 of the current Thesis.

70

of the cooperation mechanism between

MS and neighbouring third countries.

2 Decentralisation + Article 2(4): plan is developed by MS,

and it is dependent upon the national

legislation to determine if the planning

decision is made at a local level.

Preamble para 21: the management of

marine areas involves different levels of

authorities, economic operators and other

stakeholders.

3 Consideration of effect of

the activities in ecosystem

+ Article 4(5): when establishing maritime

spatial planning, MS shall have due

regard to the particularities of the marine

regions, relevant, existing and future

activities and uses and their impacts on

the environment, as well as to natural

resources, and shall also take into account

land-sea interactions.

4 Economic value of

ecosystem

+

Preamble para 13: healthy marine

ecosystems and their multiple services, if

integrated in planning decisions, can

deliver substantial benefits in terms of

food production, recreation and tourism,

climate change mitigation and adaptation,

shoreline dynamics control and disaster

prevention.

5 Conservation is a priority - Article 1(1): aim is to promote the

sustainable growth of maritime

economies, the sustainable development

of marine areas and the sustainable use of

marine resources.

6 Management within the

functioning and limits of

ecosystem

- -

7 Consideration of spatial and

temporal scale

+ Article 6(3): plans shall be reviewed by

MS minimum every ten years.

Preamble para 8: in order to promote the

sustainable coexistence of uses and,

where applicable, the appropriate

apportionment of relevant uses in the

maritime space, a framework should be

put in place that consists of at least the

establishment and implementation by

Member States of maritime spatial

planning, resulting in plans.

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8 Long term management + Article 6(3): plans shall be reviewed by

MS minimum every ten years.

9 Consideration of changes + Preamble para 14: allow for an adaptive

management which ensures refinement

and further development as experience

and knowledge increase, while taking

into account the availability of data and

information at sea basin level to

implement that approach.

Preamble para 19: MS need to take into

consideration long-term changes due to

climate change.

10 Balance between

conservation & use of

biological diversity

- -

11 Information based

management

+ Article 6(2)(e): MS shall organise the

best available data.

Article10: MS shall organise the use of

the best available data and decide how to

organise the sharing of information that is

necessary for maritime spatial plans.

Preamble para 18: MSP due regard to

best available knowledge.

12 Inclusion of relevant sectors

of society

+ Article 9: 1. MS shall establish the

means of public participation by

informing all interested parties and by

consulting the relevant stakeholders and

authorities and the public concerned at an

early stage in the development of MSP.

2. MS shall also ensure that the relevant

stakeholders and authorities, and the

public concerned, have access to the

plans once they are finalised.

Preamble para 21: the management of

marine areas involves different levels of

authorities, economic operators and other

stakeholders.

Table 4 Comparison FMSP with the 12 Malawi principles of the EBA

To summarise the results of the comparison, the rules of the FMSP are compatible with nine

out of twelve principles. However, three important principles are missing: ‘conservation is a

priority’; ‘management within the functioning and limits of ecosystem’; and ‘balance between

72

conservation and use of biological diversity’. These missing principles are of relevance because

they are all concerned with conservation and limits of the ecosystem.


Legally or even linguistically, the FMSP contains the EBA, but as analysis mentioned above

demonstrated, it prioritises economic growth that does not correspond to the meaning of the

EBA. The Directive seems to emphases the MSP as a tool for the MS to achieve Blue growth

rather than to achieve GES, while the main goal of the EBA (as defined by the CBD and MSFD)

is the promotion of the balance between conservation and sustainable use of marine services.

As was shown by the comparison between FMSP and the principles of the EBA, the FMSP is

compatible with nine principles out of twelve. However, the Directive is missing crucial

principles of the EBA concerning the conservation of marine biodiversity and the finite nature

of marine ecosystems. Therefore, the hypothesis of the current work was partially wrong, as by

virtue of the fact that the FMSP contains EBA formally, but does not fully include its objectives.

However, MSP is regulated not only by the FMSP but also by the other EU secondary

legislation, which could add the missing aspects of the EBA that will be discussed further in

sections 4.8 and 4.9.

4.7 FMSP and public participation

The concept of public participation is widely accepted within the EU as the EU is bound by the

Aarhus Convention.347 As mentioned in section 2.3, public participation is considered to be one

dimension of the social pillars of sustainability. Furthermore, public participation is threefold,

including access to information, participation in decision-making processes and effective access

to judicial and administrative proceedings.

At the same time, it is necessary to consider the scope of the FMSP in order to determine

if all of these three pillars of public participation should be reflected by the Directive. As the

content of the FMSP is coherent with the definition of ‘environmental information’ given in

section 2.3.2.1, it should ensure access to said environmental information. Moreover, MSP plan

encompasses different activities that are likely to affect the environment, and thus, public

participation in the decision-making process should be provided. Also, if two pillars (access to

information and participation in the decision-making process) should be presented in the

Directive, access to justice is also required to guarantee the enforcement of above-mentioned

347 Aarhus Convention (n 79) ‘Parties and Signatories to the Convention’ United Nations Treaty Collection

<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-13&chapter=27&clang=_en>

accessed 29 December 2016.

73

pillars.

Hence, the content of the FMSP indicates that it should contain all three pillars of public

participation.348 Indeed, the FMSP reflects public participation to some extent. For instance, its

preamble states that the process of managing marine areas involves various levels of authorities,

economic operators and other stakeholders that should be consulted in the preparation of

MSP.349 Referring to article 2(2) of the PPD Directive as a good example of public

consultation,350 the FMSP requires from the MS to ensure that the public is given an opportunity

to be involved in the preparation and review of the maritime spatial plans. This participation

includes the following elements: public access to information; expression of opinions before

decisions on plans are taken; consideration of such opinions; and sharing the decision with the

public.351

Moreover, in connection with the SEA Directive, the FMSP mentions an environmental

assessment for the preparation and adoption of a maritime spatial plan in the case that it is likely

to have significant effects on the environment.352

As regards the EIA procedure, the FMSP legal norms do not fall under the scope of the

EIA Directive. Hence, EIA procedure under the EIA Directive in relation to MSP will be not

covered by this research. (see previously section 2.3.2.2)

Access to information is rather implicitly mentioned by the FMSP. It states that the MS

should ensure that data on maritime activities and marine waters are used in accordance with

the INSPIRE Directive.353 To this end, one should be reminded that INSPIRE promotes access

to information between MS and EU institutions and does not consider the public in the way it

was defined in section 2.3.3. And there is no reference in the FMSP to the Directive

348 ibid article 9. 349 FMSP (n 14) preamble para 21. 350 PPD Directive (n 92) article 2(2) refers to public participation concerning plans and programmes and obliges

MS to ensure that the public is given early and effective opportunities to participate in the preparation and

modification or review of the plans or programmes required to be drawn up under the provisions listed in Annex

I. To that end, MS shall ensure that:

(a) the public is informed, whether by public notices or other appropriate means such as electronic media where

available, about any proposals for such plans or programmes or for their modification or review and that relevant

information about such proposals is made available to the public including inter alia information about the right to

participate in decision-making and about the competent authority to which comments or questions may be

submitted;

(b) the public is entitled to express comments and opinions when all options are open before decisions on the plans

and programmes are made;

(c) in making those decisions, due account shall be taken of the results of the public participation;

(d) having examined the comments and opinions expressed by the public, the competent authority makes

reasonable efforts to inform the public about the decisions taken and the reasons and considerations upon which

those decisions are based, including information about the public participation process. 351 ibid. 352 FMSP (n 14) preamble para 23 refers to the SEA Directive. 353 ibid article 10.

74

2003/4/EC.354

Finally, the FMSP in its minimum requirements on MSP refers to the obligation of MS:

Ensure the involvement of stakeholders in accordance with Article 9.355

However, Article 9 of the FMSP uses the generic heading ‘public participation’ including that:

MS shall establish means of public participation by informing all interested parties and by

consulting the relevant stakeholders and authorities, and the public concerned, at early stage in the

development of MSP […].

As a result, there is a situation of ambiguity with regards to the terms stakeholders and the

public, described in section 2.3.3, which takes place in the EU legislation. The term

stakeholders in the FMSP is used as an umbrella term and includes the public concerned. While

the EU legislation defines the public356 and then public concerned,357 and then it can be

suggested to legally define the term stakeholder.


The scope of the FMSP indicates the three pillars of public participation as guaranteed by the

EU legislation. In reality, it only includes one – public participation in the preparation of the

MSP. Furthermore, it does not shed any light on access to information and justice. Thus, it only

exhibits partial public participation. At the same time, the missing pillars can be ensured by

environmental horizontal legislation that MS are compliant with.358

4.8 Horizontal environmental legislation

The aim behind the assessment of the horizontal environmental legislation is to find out if it

can provide the MS with the ecological content of the EBA and the missing pillars of public

participation, access to information and justice, to achieve an equilibrium between economic

and ecological aims for maritime activities. Among the many laws that FMSP refers to are the

MSFD and the SEA Directive.

354 Directive 2003/4/EC (n 88). 355 ibid article 6(1)(d). 356 SEA Durective article 2(d) and Directive PPD Directive article 2(1) defines public as one or more natural or

legal persons and, in accordance with national legislation or practice, their associations, organisations or groups 357 PPD Directive (n 92) article 3(1) defines ‘public concerned’ as the public that is affected or likely to be affected

by, or having an interest in, the environmental decision-making procedures, including non-governmental

organisations promoting environmental protection. 358 S Wolf and N Stanley, Wolf and Stanley on environmental law (6th edn, Routledge 2014) 112 explains that

horizontal legislation applies not to specific field or activity but it across various fields or activities, it usually seeks

to lay down a procedure or regulatory system.

75

4.8.1 Interplay between MSFD and FMSP

It was defined in section 4.6 that the FMSP formally contains the EBA, but does not fully reflect

its meaning with regards to the protection of marine diversity, whereas the text of the FMSP

points out that the application of the EBA should be as mentioned in Article 1(3) of the

MSFD.359

The relationship between the FMSP and the MSFD is not straightforward. The FMSP is

not a specific directive for the MSFD since they are both framework directives albeit with

significant coherence. Needed to note that the status of ‘framework directive’ gives a margin

of appreciation for MS. In the current case, each MS should establish a marine strategy in order

to achieve the GES by 2020.360 While for the MSP the form of the directive prescribes the

development of a national MSP.

In this sense, the GES should be achieved in marine regions and sub-regions on the basis

of qualitative descriptors.361 Indeed, these GES descriptors include the EBA principles that were

not reflected by the FMSP, such as ‘conservation as a priority’ and ‘management within the

function and limits of the ecosystem’. Nevertheless, it aims to reflect purely conservation goals

and does not include a balance between the conservation and the use of biological diversity.

Neither does the FMSP, which mainly pursues economic goals. Then, the MSFD implies a pure

conservation approach while the FMSP formally includes the EBA but fails to defend it through

its legal norms. It can be concluded that even if the FMSP does not include environmental legal

norms, the MS are required to achieve the GES by 2020. At this point, an MS, while developing

MSP plans, should always consider achieving the GES at the same time.

359 MSFD (n 68) article 1(3) states that the EBA should aim to ensure that the collective pressure of all activities

is kept within levels compatible with the achievement of good environmental status and that the capacity of marine

ecosystems to respond to human-induced changes is not compromised, while contributing to the sustainable use

of marine goods and services by present and future generations. 360 ibid article 5. 361 ibid annex I defines qualitative descriptors for determining GES:

(1) Biological diversity is maintained.

(2) Non-indigenous species introduced by human activities do not adversely alter the ecosystems.

(3) Populations of all commercially exploited fish and shellfish are within safe biological limits.

(4) All elements of the marine food webs occur at normal abundance and diversity and levels capable of

ensuring the long-term abundance of the species and the retention of their full reproductive capacity.

(5) Human-induced eutrophication is minimised.

(6) Sea-floor integrity ensures that the structure and functions of the ecosystems are safeguarded and benthic

ecosystems.

(7) Permanent alteration of hydrographical conditions does not adversely affect marine ecosystems.

(8) Concentrations of contaminants are at levels not giving rise to pollution effects.

(9 Contaminants in fish and other seafood for human consumption do not exceed levels established by

Community legislation or other relevant standards.

(10) Properties and quantities of marine litter do not cause harm to the coastal and marine environment.

(11) Introduction of energy, including underwater noise, is at levels that do not adversely affect the marine

environment.

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As Gilbert and others (2015) notice, the MSP can influence some of the GES descriptors,

such as hydrological conditions, energy and underwater noise, and seafloor integrity because

these descriptors include a spatial character.362 Biodiversity and commercial fish descriptors are

partially affected by the MSP as they are place-specific.363 It is relevant to mention that five

other descriptors can be affected adversely if not regulated by the MSP: eutrophication,

contaminants in the sea, marine litter, energy, and underwater noise.364

Then again, the main challenge, as it usually is, is in the implementation. One of the

challenges, in this case, is due to the different spatial scales - MSP at the national level and GES

at the marine regions and sub-regions level. This can be overcome through transboundary

cooperation between MS and coherence of the MSP. Meanwhile, the current achievement of

GES is alarming: as of 2014, of all species and marine habitats, fewer than 20 per cent are

considered as being in good environmental status.365

The MSFD has rather few legal norms with regards to the public participation.

Therefore, it is still necessary to identify whether the MSFD needs to include norms on public

participation. It appears that the MSFD contains environmental information which is in

accordance with the Directive 2003/4/EC on access to environmental information. However,

the MSFD does not comprise any activities that might potentially harm the environment and

hence does not require public participation in the decision-making process. In this case, access

to justice should only ensure enforcement of the access to information.

Access to information is ensured upon request for information about the different

elements and updates of the marine strategies.366 Moreover, MSFD refers to the Directive

2003/4/EC on access to information.367 This directive besides access to information prescribes

access to justice in the case of a failure to provide the former.368 However, MSFD does not

specifically refer to access to justice under the Directive 2003/4/EC that lead to conclusion that

the MSFD does not contain the third pillar of public participation. As regards public

participation in decision-making process, even though the content of the MSFD does not require

that pillar, it includes the possibility for the public to comment on elements of marine

362 Alison J Gilbert et al., ‘Marine Spatial Planning and Good Environmental Status: A Perspective on Spatial and

Temporal Dimensions’ Ecology and Society 20 (2015) 2. 363 ibid. 364 ibid. 365 European Environmental Agency, ‘Marine message. Our seas, our future – moving towards a new

understanding’ [2014] 10. 366 MSFD (n 68) preamble para 36. 367 ibid article 19(3). 368 Directive 2003/4/EC (n 88) article 6.

77

strategies.369 Accordingly, the MSFD comprises only two pillars of public participation,

ignoring access to justice in the case of a failure to provide access to information. In fact, it

should only contain two different combinations of public participation: access to information

and access to justice in the case of a failure to provide the former.

4.8.1.1 Concluding remarks

On the one hand, the MSFD defines EBA but mainly contains conservational measures that are

missing in the FMSP. On the other, the FMSP formally entails EBA but does not include

conservation aspects. At the same time, even in cases where FMSP legal norms have lacked

conservation measures, an MS has undertaken its obligation to reach the GES in the marine

regions. To fulfil the obligation on the achievement of GES transboundary cooperation of MS

is required while each coastal MS is solely responsible for establishing the MSP. Still, achieving

GES in the marine regions entails national conservational measures that will be likely reflected

in the MSP. From this follows that every national MSP will contain measures on achieving

GES. Nevertheless, the successful implementation can be complicated due to the different

spatial scopes of the national MSP and regional GES.

As regards public participation, the scope of the MSFD prescribes access to

environmental information and access to justice in the case of failure to provide the former. In

reality, the MSFD ensures access to information, even prescribing measures on public

participation in the decision-making process, but has no legal norm on access to justice in the

case of failure to provide access to information.

4.8.2 The SEA Directive and the FMSP

The preamble of the FMSP states that in the case of potentially significant effect on the

environment caused by the MSP, it is necessary to conduct an environmental assessment into

the preparation of plans and programmes.370

The issue of strategic environmental assessment of plans and programmes is mainly

regulated by the SEA Directive. The main goal of the SEA Directive is to promote a high-level

environmental protection and to contribute to the preparation and adoption of plans and

programmes with a view to promoting sustainable development.371 Since the SEA Directive is

a procedural law, this makes the application of the EBA irrelevant.

The environmental assessment is obligatory for agriculture, forestry, fisheries, energy,

transport, waste management, water management, telecommunications, tourism, town and

369 ibid article 19(2). 370 FMSP (n 14) preamble 23. 371 SEA Directive (n 96) article 1.

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country planning or land use.372 Since the MSP encompasses most of these uses, it is possible

to infer that the SEA is obligatory for it.

Furthermore, the SEA procedure includes elements of public participation. When the

environmental report with the reasonable alternatives of the proposed plan or programme is

identified, the public and the environmental authorities are informed and consulted.373 The

result of the consultation is then taken into consideration for the decision making.374 After that,

an MS shall ensure that information on an adopted plan or programme is disseminated among

the public.375

4.8.2.1 Concluding remarks

The text of the SEA Directive contains two pillars of public participation: access to information

and public participation in the decision-making. However, it is missing access to justice. This

is the proof that the third pillar of public participation is indeed weak as described in section

2.3.2.3. Thus, the EU framework on MSP does not include the three pillars public participation

in a comprehensive way. Therefore, this undermines the democratic principles and the ‘social’

element of sustainable development.

4.9 Selected maritime uses having relevance to MSP

The list of possible uses in the MSP is not exhaustive under the FMSP. As mentioned in the

Directive`s proposal, the MSP legislation aims not to create a new policy, but on the contrary,

to integrate existing activities and their acquis.376 As previously mentioned, the FMSP lists

among the possible MSP activities the following: aquaculture, fisheries, exploration and

extraction of oil, gas and other energy resources, maritime transport, military activities, nature

and species conservation, raw material extraction, scientific research, submarine cable and

pipeline, tourism and underwater cultural heritage.377 This section seeks to analyse the

regulation on some of the maritime uses in the EU and their reflection on the EBA and public

participation.

4.9.1 Conservation

The EU policy framework develops in parallel with global policy. As was illustrated in section

3.3.6 at the global level main conservational instrument is the CBD, while the EU

372 ibid article 3(2)(a). 373 ibid articles 5 and 6. 374 ibid article 7. 375 ibid article 9(1). 376 Directive proposal (n 225) 3, 4. 377 FMSP (n 14) article 8(2).

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conservational legislation consists of MFSD, the Birds Directive and the Habitats Directive. In

general, the Habitats and Birds Directives are often named as horizontal legislation because

they are applied through many other EU policies. However, the FMSP considers conservation

not as a prerequisite for all legal norms or principle, but as a use equal to fisheries, shipping,

etc.

The Habitats Directive aims to protect vulnerable natural habitats and wild fauna and

flora.378 The Birds Directive targets conservational objectives by creating special protection

areas.379 At the heart of these Directives is the use of special conservation areas through a

coherent European ecological network, Natura 2000, covering together land and sea.380

Consequently, Natura 2000 encompasses special conservation areas to implement the Habitats

Directive and special protection areas implementing the Birds Directive.

Referring to the Dutch MSP (Map 2, section 2.1.4), it comprises designated Natura 2000

areas and also areas of their possible designation. The scope of the Natura 2000 network

includes not only land areas but marine environments as well. Such view was supported by the

CJEU judgment on implementing Natura 2000 in the EU MS` EEZ.381 The marine Natura 2000

covers a specific but limited number of vulnerable marine species and habitats. However, these

directives provide a coherent approach to the protection of seabirds, turtles and marine

mammals, while fish, invertebrate species and marine habitats have a different level of

protection.382

In response to such a gap, the MSFD was implemented with the aim of achieving GES

by 2020 by using broad spatial protection measures that contribute to the coherent networks of

MPA.383 Furthermore, the FMSP states that it will contribute to achieving the aims of the above-

stated directives.384 As previously mentioned, the EU environmental policy supports the

international policies. In this context, the CBD targets for 10 per cent of the MPA coverage by

2020.385 However, by 2013 only 5.9 per cent of Europe`s seas were designated as an MPA.386

378 Habitats Directive (n 336) article 1. 379 Birds Directive (n 335) article 3. 380 Decision No. 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the

Sixth Community Environment Action Programme [2002] OJ L 242 article 6.2 established Natura 2000 aims to

ensure long-term survival of the Europe`s most vulnerable species and habitats, listed under the Birds Directive

and the Habitats Directive. 381 Case C-6/04 Commission v UK [2005] ECR I-9017 articles 115-120. 382 European Environment Agency, Report 3/2015 ‘Marine protected areas in Europe`s seas. An overview and

perspectives for the future’ [2015] (EEA Report 3/2015)10, 11. 383 MSFD (n 68) article 13(4). 384 FMSP (n 14) preamble para 15. 385 CBD (n 41) COP 10 Decision X/2 [2010] Annex I ‘Strategic Goals and the Aichi Biodiversity Targets’ Target

11. 386 EEA Report 3/2015 (n 382) 13.

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4.9.1.1 The Habitats and Birds Directives and the EBA

Besides including a strong conservational angle, the Habitats Directive takes into account

economic, social and cultural requirements together with regional and local characteristics.387

Similarly, the Birds Directive considers ecological, scientific, cultural, economic and

recreational requirements.388 Just as the MSFD sets out to achieve the GES, the Habitats

Directive entails achieving the favourable conservation status of the biogeographical or marine

region of their national territory.389 Such regional considerations are based on the similarities

of the ecosystems instead of purely on the national jurisdiction. Then, this accounts for the

acknowledgement of the geographical nature of flora and fauna. However, the Birds and

Habitats Directives are fully devoted to conservational purposes and only reflect marginally the

economic side of the EBA.

4.9.1.2 Habitats and Birds Directives and public participation

The inclusion of public participation in the Habitats and Birds Directives depends on their

scope. The two directives regulate the state of the biological diversity, natural sites and

landscapes which falling under the scope of the definition of the environmental information

stated in the Directive 2003/4/EC which details public access to environmental information.390

Hence, the directives need to be coherent and ensure access to environmental information. It is

relevant to mention that the inclusion of legal norms on public participation in the decision-

making process as it prescribed by the EIA and SEA Directives are not needed due to the pro-

environmental content of the conservational directives. However, the Habitats and Birds

Directives have to include enough legal norms with regards to access to justice in the case of

failure to provide access to information.

In fact, the Habitats Directive only refers to the need of obtaining the opinion of the

general public when there is a plan or a project that is not directly connected to the management

of the site, and a significant effect would be likely.391 The next reference, which refers to the

desirability of reintroducing species in Annex IV, states that any decision on this matter must

occur after proper consultation of the public concerned.392 Thus, the Habitats Directive only

mentions briefly the second pillar of public participation, and it ignores pillars: access to

387 Habitats Directive (n 336) article 2(3). 388 Birds Directive (n 335) article 2. 389 Habitats Directive (n 336) articles 1(iii) and 2. 390 Directive 2003/4/EC (n 88) article 2(1)(a). 391 Habitats Directive (n 336) article 6(3). 392 ibid annex IV.

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information with access to justice. Furthermore, it is relevant to mention that the Birds Directive

has not been amended to include any reference to public participation.

4.9.2 Common Fisheries Policy

While some fishery policies are under shared competence between the EU and MS, the EU has

the exclusive competence in the conservation of marine biological resources under the Common

Fisheries Policy (CFP).393

The legislation on the CFP will be outlined in the following text since it has the most

number of interactions with the MSP. The CFP is regulated by numerous laws, but its holistic

approach is presented by the Regulation 1380/2013 on the CFP.394 CFP Regulation applies to

the conservation of marine biological resources and the management of fisheries targeting

them.395 The policy’s goal is to ensure that fishing and aquaculture are environmental,

economically and socially sustainable to provide a source of food in the long-term.396 It also

sets the catch limits for the long-term sustainable maintenance of fish stock as between 2015

and 2020.397

It is necessary to point out that the CFP Regulation implements the EBA to the fisheries

management in order to decrease the negative impacts of fishing activities on the marine

ecosystems.398 Even so, fisheries are not subject to the MSFD and are exclusively regulated by

the CFP Regulation.399 However, even when the CFP legislation is required to be consistent

with EU environmental legislation, in particular with the objectives of achieving GES by 2020,

it is not subject to environmental legislation.400

The legal norms of the CFP Regulation fall under the scope of the environmental

393 TFEU (n 87) articles 3(1)(2), 4(2)(d). 394 Regulation (EU) No 1380/2013 of the European Union and of the Council of 11 December 2013 on the

Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and

repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC

[2013] OJ L 354 as amended by the Regulation (EU) 2015/812 of the European Parliament and of the Council of

20 May 2015 amending Council Regulations (EC) No 850/98, (EC) No 2187/2005, (EC) No 1967/2006, (EC) No

1098/2007, (EC) No 254/2002, (EC) No 2347/2002 and (EC) No 1224/2009, and Regulations (EU) No 1379/2013

and (EU) No 1380/2013 of the European Parliament and of the Council, as regards the landing obligation, and

repealing Council Regulation (EC) No 1434/98 [2015] OJ L 133 (CFP Regulation). 395 ibid preamble para 2. 396 ibid article 2. 397 ibid preamble para 7. 398 ibid article 2(2). Article 4(1)(9) defines EBA to fisheries management as an integrated approach to managing

fisheries within ecologically meaningful boundaries which seeks to manage the use of natural resources, taking

account of fishing and other human activities, while preserving both the biological wealth and the biological

processes necessary to safeguard the composition, structure and functioning of the habitats of the ecosystem

affected, by taking into account the knowledge and uncertainties regarding biotic, abiotic and human components

of ecosystems. 399 CFP Regulation (n 394) articles 2(5)(j) and 11. See more J Wakefield, Reforming the Common Fisheries Policy

(Edward Elgar Publishing Limited 2016) 230. 400 ibid article 2(5)(j).

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information in accordance with the Directive 2003/4/EC because they are devoted to marine

biological resources.401 As the CFP Regulation mainly encompasses conservational measures

that do not have a harmful effect on the environment, it therefore, shall provide public

participation in the access to information.

The CFP falls under the exclusive competence of the EU that aims to implement a

bottom-up approach. The CFP Regulation states that its management is based on stakeholder

involvement,402 in particular, the Advisory Council that takes part in all stages of the process

from conception to implementation of the measures.403 Furthermore, the Advisory Councils are

established for each geographical area or field of competence.404 In this sense, the composition

of the Advisory Council includes organisations representing fisheries, aquaculture operators

and representatives of the processing and marketing sectors and other interest groups affected

by the CFP (e.g. environmental organisations and consumer groups).405 In this context, the term

‘stakeholders’ is used as an umbrella term that includes the public in the form of the interest

group affected by the CFP.

However, the CFP also refers to the public in the context of providing access to different

pieces of information,406 while the Advisory Council may submit recommendations on matters

relating to the management of fisheries407 and they shall be taken into account.408 Although

nothing is mentioned about reviewing the procedure or the consideration of such

recommendations. Hence, it is clear that the CFP Regulation incorporates the first pillar of

public participation - access to information and public participation in the decision-making

process, undermining the access to justice.

4.9.3 Renewable energy (wind, ocean energy)

The current 2020 framework for the EU sets the target of using 20 per cent of the energy

consumption based on renewable energies considering the legally binding national targets until

2020.409 In this sense, marine and offshore wind energy are among the renewable energy

401 Directive 2003/4/EC (n 88) article 2(1)(a). 402 CFP Regulation (n 394) preamble para 14. 403 ibid article 3(f). 404 ibid article 43(1). 405 ibid article 45(1). 406 ibid article 19(3) states that measures on conservation of fish stocks in Union waters shall be publicly available.

Article 22(3) mentions that report on the balance between the fishing capacity of the fleets and fishing opportunities

shall be publicly available. Article 24(3) stipulates that public access shall be provided to the Union fishing fleet

register. 407 ibid article 44(2). 408 ibid article 44(3). 409 Renewable Energy Directive (n 188) article 3(1).

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sources that are relevant to MSP.410 Currently, wind energy accounts for 11.1 per cent of the

total share of renewable energy production while ocean energy production is at a very low

level.411 However, the use of renewable energy will increase which is followed from the

proposal for a revised Renewable Energy Directive which sets the share of renewable energy

of 27 per cent in 2030 is taken into account.412 MS follow this trend, as such the Dutch MSP

plan contains designated wind energy areas for the future expansion of renewable energy sector.

(see section 2.1.4)

As for the main obligation set out by the Renewable Energy Directive, each MS has

different renewable energy targets depending on their starting point and their overall potential

for renewable energy.413 To achieve the targets, every MS shall draft a national renewable

energy action plan.414

It is relevant to point out that the Renewable Energy Directive does not comprise the

EBA. However, it includes sustainability criteria for biofuels and bio-liquids which guarantee

real carbon savings and the protection of biodiversity.415 Unfortunately, there are no other

similar requirements for other sources of renewable energy.

Nevertheless, the preamble of the Renewable Energy Directive mentions the

implementation of public participation when relevant and in accordance with the Directive

2003/4/EC.416 However, the text of the Renewable Energy Directive only reflects the first pillar

of public participation – access to information. For example, it covers the national plans that

shall be made public on the transparency platform,417 certification schemes,418 information on

the availability and environmental benefits of all different renewable sources of energy for

transport.419

Indeed, the Renewable Energy Directive is under the scope of the environmental

information of the Directive 2003/4/EC. However, it could be suggested that the application of

the SEA Directive is also necessary for national renewable energy action plans as it sets a

410 ibid article 2(a). 411 Eurostat, ‘Renewable energy statistics’

<http://ec.europa.eu/eurostat/statistics-explained/index.php/Renewable_energy_statistics> accessed 14 January

2017. 412 European Commission COM (2016) 767 final/2 ‘Proposal for a Directive of the European Parliament and of

the Council on the promotion of the use of energy from renewable sources’ 2. 413 ibid article 1. 414 ibid article 4(1). 415 Renewable Energy Directive (n 188) preamble para 76. 416 ibid preamble para 90. 417 ibid article 4(6). 418 ibid article 14(4). 419 ibid article 21(1).

http://ec.europa.eu/eurostat/statistics-explained/index.php/Renewable_energy_statistics

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requirement to conduct strategic environmental assessments for energy.420 Furthermore, it is

of relevance to highlight that even when many people do not consider that renewable energies

can impact the environment negatively, many researchers have expressed their concerns with

regards to the unregulated and uncontrolled growth of renewable energy production.421

Therefore, it can be concluded that the CFP fails to properly ensure public participation

in the decision-making process as the part of the SEA is an imperfection of the legislation.

Finally, the Renewable Energy Directive is consistent with the negative practice of the EU

which does not provide guaranteed access to justice.

4.9.4 Offshore oil and gas exploitation

The MS have control over natural resources in their territories,422 which entitles them to search,

produce and exploit these resources.423 At the same time, to ensure fair competition, the EU has

developed licensing rules for oil and gas which are reflected in the Hydrocarbon Directive. In

the maritime context, it is of interest to analyse the Offshore Safety Directive which contains

legal norms on prevention of offshore oil and gas accidents and on measures in case the latter

happens.424

The Offshore Safety Directive has an environmental legal basis.425 It aims to contribute

to ensuring the protection of the marine environment, including achieving GES by reducing the

risk of pollution of offshore waters.426 Also, the MSFD is relevant to offshore oil and gas

installation as it links each economic sector with the objective of developing a coherent

approach to the sea that takes into account all economic, environmental and social aspects by

means of the MSP.427 Among the crucial requirements and new norms of the Offshore Safety

Directive are the Corporate Major Accident Prevention Policy and the Safety and

Environmental Management System.428 This ensures that companies have sufficient financial

status429 and environmental liability of operators.430 Also, it has a substantial environmental

core which was placed considering the safety of people and energy supply as the main criteria

420 SEA Directive (n 96) article 3(2)(a). 421 Environmental Impacts of Renewable Energy Technologies < http://www.ucsusa.org/clean-energy/renewable-

energy/environmental-impacts#.WIzLFFMrLX4> accessed 28 January 2017. 422 Hydrocarbon Directive (n 325) preamble. 423 ibid article 2. 424 Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil

and gas operations and amending Directive 2004/35/EC [2013] L 178 (Offshore Safety Directive). 425 ibid preamble. 426 ibid preamble para 6. 427 ibid preamble para 7. 428 Offshore Safety Directive (n 424) articles 11(1)(a) and 11(1)(b). 429 ibid article 4(2)(c). 430 ibid article 7.

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85

for limiting the impact in case of major accidents.431 Moreover, the trace of the conservational

part of the EBA can be deducted from the norm relating to the requirement on granting the

licence. It states that when assessing capabilities of an applicant for a licence, special attention

shall be paid to any environmentally sensitive marine and coastal environments, as well as

marine protected areas under the Birds and Habitats Directives and other regional

agreements.432

Early and effective public participation in relation to operations has a potential and

significant effect on the environment, and it is given proper attention by the Offshore Safety

Directive. In fact, it refers to public participation under the SEA and EIA Directives and Seveso

III Directive 2012/18/EU433 and by the Aarhus Convention for the cases that are not covered

by these laws.434 In the cases when public participation was not an accomplished under the

abovementioned directives, Article 5 of the Safety Offshore Directive ensures public access to

information on exploration operations,435 public concerned with the interest test436 has the

opportunity to comment,437 and the results are taken into account in the decisions with regards

to the operations.438 Likewise, the other sectoral and horizontal legislation, Offshore Safety

Directive has no reference to access to justice.439

Given this context, it is possible to observe that the Offshore Safety Directive

incorporates the EBA and two pillars of public participation – access to information and public

participation in the decision-making process.

4.9.5 EU law, maritime uses and the inclusion of the EBA and public participation

Table 5 shows the maritime uses, discussed in sections 4.9.1 – 4.9.4, that are subject to the

allocation under the MSP. It also outlines their main legal sources and the reflection of the EBA

and public participation.

As expected, public participation is divided into three sectors that correspond to the

three pillars of public participation: (I) access to environmental information, (II) participation

in decision-making process, and (III) access to justice. The EU rules properly reflecting the

431 ibid preamble para 12. 432 ibid article 4(6). 433 Seveso III Directive (n 105). 434 Offshore Safety Directive (n 424) preamble 16. 435 ibid articles 5(2)(a) and 5(2)(c). 436 ibid article 5(2)(b) describes public concerned is identified, including the public affected or likely to be affected

by, or having an interest in, the decision to allow exploration operations, including relevant non-governmental

organisations such as those promoting environmental protection, and other relevant organisations. 437 ibid article 5(2)(d). 438 ibid article 5(2)(e). 439 ibid preamble para 15 from the beginning only mentions two pillars of the Aarhus Convention, such as access

to information, public participation and nothing said about access to justice.

86

Aarhus Convention principles are marked in blue, while the ones that do not correspond to the

Convention and the EU rules implemented it are marked in grey.

Maritime use Legal Source EBA Public participation

Conservation Habitats

Directive

Birds

Directive

Article 2(3) Habitats

Directive takes into

account economic,

social and cultural

requirements together

with regional and local

characteristics.

Article 2 of the Birds

Directive considers

ecological, scientific,

cultural, economic and

recreational

requirements.

I Not present

II Article 6(3) of the Habitats

Directive: public

participation in the

decision-making public in

case the plan or project

which is not directly

connected to the

management of the site is

likely to have significant

effect.

III Not present

Common

Fisheries

Policy

CFP

Regulation

1380\2013

Article 2(2) implements

the EBA to the fisheries

management to decrease

the negative impacts of

the fishing activities on

the marine ecosystems.

I Article 19(3): measures on

conservation of fish stocks

in Union waters shall be

publicly available.

Article 22(3): report on the

balance between the fishing

capacities of the fleets and

fishing opportunities shall

be publicly available.

Article 24(3): public access

shall be provided to the

Union fishing fleet register.

II Articles 44(2) and 44(3):

recommendations and

suggestions of Advisory

Council (also includes

interested groups affected

by the CFP) shall be taken

into account.

III Not present

Renewable

Energy

Renewable

Energy

Directive

Not present

I Article 4(6): access to

information, for example, in

relation to national plans

87

Preamble para 76 only

refers to sustainability

criteria for biofuels and

bioliquids which

guarantees real carbon,

savings and protection of

biodiversity.

that shall be made public on

the transparency platform.

Article 14(4): access to

certification schemes.

Article 21(1): information

on the availability and

environmental benefits of

all different renewable

sources of energy for

transport.

II Not present

III Not present

Oil and gas

exploitation

Offshore

Safety

Directive

Article 4(6) states that

when assessing

capabilities of an

applicant for a licence,

special attention shall be

paid to any

environmentally

sensitive marine and

coastal environments,

and marine protected

areas under the Birds

and Habitats Directives

and other regional

agreements.

I Article 5: ensure public

access to information on

exploration operations.

II Preamble para 16: reference

to EIA and SEA Directives.

Article 5: public concerned

with the interest test has the

opportunity to comment and

its results are taken in

decision on the operations.

III Not present

Table 5 EU maritime uses and reflection of the EBA and public participation

From the above comparison, EBA is present in EU law relating to conservation,

common fisheries policy, and oil and gas exploitation but is missing in the Renewable Energy

Directive. With regards to public participation, there is no law that embraces the three-pillars

of public participation as prescribed by the EU rules implementing the principles of public

participation of the Aarhus Convention. Likewise, the Offshore Safety Directive and the CFP

Regulation provides access to information and rights to public participation in the decision-

making process. Also, the Renewable Energy Directive contains norms on access to information

while the Habitats Directive empowers the right in the decision-making procedure.

Meanwhile, in accordance with the EU legislation with regards to public participation

implementing the principles of public participation of the Aarhus Convention, the access to


Aarhus Convention



88

environmental information shall be provided by the Habitats and Birds Directives and the right

to the decision-making process shall be guaranteed by the Renewable Energy Directive. Finally,

all the laws mentioned above are missing the access to justice and the measures to ensure the

access to information or public participation.

4.10 Summary of EU law on MSP and its EBA and public participation

reflection

The legislation shown in Table 6 builds on the laws that are of relevance for the MSP. However,

the list is not exhaustive and can be extended by including sectoral laws on the other maritime

uses. The Table below aims to visualise the sources described in chapter 4 and outline the legal

norms of the EBA and public participation. It does not aim to give straightforward answers with

regards to the inclusion of the EBA as legally almost all listed sources contain such legal norms.

However, the overall context of the law diverges from the EBA as it prioritises nature

conservation or sustainable use and almost never balances.

Then, the situation with regards to public participation is also not straightforward. As

observed, the analysed laws fail to reflect a proper legal norm with regards to access to justice,

and they also fail to implement the other pillars in accordance with the scope of the EU laws

implementing the principles of public participation of the Aarhus Convention. It might also be

the case that they have never been updated to be consistent with them. For example, the Birds

Directive or MSFD goes beyond the prescribed scope while the Renewable Energy Directive

does not reflect the second pillar.

Legal Source EBA Public participation

FMSP Preamble para 22: MSP is also

called as a tool to support EBA to

the management of human

activities in order to achieve GES.

Article 4(5): When establishing

maritime spatial planning, Member

States shall have due regard to the

particularities of the marine

regions, relevant, existing and

future activities and uses and their

impacts on the environment, as

well as to natural resources, and

I

Not present

II Article 9(1): MS shall

establish the means of PP

by informing all interested

parties and by consulting

the relevant stakeholders

and authorities, the public

concerned at an early stage

in the development of MSP.

Article 9(2): MS shall also

ensure that the relevant

stakeholders and

authorities, and the public

concerned, have access to

89

shall also take into account land-

sea interactions.

the plans once they are

finalised.

III Not present

Horizontal legislation

MSFD Preamble para 8: By applying an

ecosystem-based approach to the

management of human activities

while enabling a sustainable use of

marine goods and services, priority

should be given to achieving or

maintaining good environmental

status in the Community’s marine

environment, to continuing its

protection and preservation, and to

preventing subsequent

deterioration.

Article 1(3): marine strategies

shall apply an EBA to the

management of the human

activities, ensuring should aims to

ensure that the collective pressure

of all activities is kept within

levels compatible with the

achievement of good

environmental status and that the

capacity of marine ecosystems to

respond to human-induced changes

is not compromised, while

contributing to the sustainable use

of marine goods and services by

present and future generations.

I Preamble para 36: To

ensure the active

involvement of the general

public in the establishment,

implementation and

updating of marine

strategies, provision should

be made for proper public

information on the different

elements of marine

strategies, or their related

updates, as well as, upon

request, relevant

information used for the

development of the marine

strategies in accordance

with Community legislation

on public access to

environmental information.

Article 19(3): Directive

2003/4/EC on the access to

the environmental

information shall apply

with regards to access to

environmental information.

II Article 19: MS shall

publish, and make available

to the public for comment,

summaries different

elements of the marine

strategies.

III Not present

90

SEA Directive Not relevant I Articles 5-6: When the

environmental report with

the reasonable alternatives

of the proposed plan or

programme are identified,

the public and the

environmental authorities

are informed and consulted.

II Article 7: The result of the

consultation is taken into

consideration while

decision taking.

Article 9(1): MS shall

ensure that information on

adopted plan or programme

is disseminated among the

public.

III Not present

Sectoral legislation

Habitats Directive

Birds Directive

Article 2(3) of the Habitats

Directive takes into account

economic, social and cultural

requirements together with

regional and local characteristics.

Article 2 of the Birds Directive

considers ecological, scientific,

cultural, economic and recreational

requirements.

I

Not present

II Article 6(3) of the Habitats

Directive mentions public

participation in the decision-

making public in case the

plan or project which is not

directly connected to the

management of the site is

likely to have significant

effect.

III Not present

91

Regulation

1380\2013 on

CFP

Article 2(2) implements the EBA

to the fisheries management to

decrease the negative impacts of

the fishing activities on the marine

ecosystems.

I Article 19(3) states that

measures on conservation

of fish stocks in Union

waters shall be publicly

available.

Article 22(3) mentions that

report on the balance

between the fishing

capacity of the fleets and

fishing opportunities shall

be publicly available.

Article 24(3) stipulates that

public access shall be

provided to the Union

fishing fleet register.

II Articles 44(2) and 44(3):

recommendations and

suggestions of Advisory

Council (also includes

interested groups affected

by the CFP) shall be taken

into account.

III Not present

Renewable

Energy Directive

Not present

Preamble para 76 only refers to

sustainability criteria for biofuels

and bioliquids which guarantees

real carbon savings and protection

of biodiversity.

I Article 4(6): access to

information, for example, in

relation to national plans

that shall be made public on

the transparency platform.

Article 14(4): access to

certification schemes.

Article 21(1): information

on the availability and

environmental benefits of

all different renewable

sources of energy for

transport.

II Not present

III Not present

92

Offshore Safety

Directive

Article 4(6): when assessing

capabilities of an applicant for a

licence, special attention shall be

paid to any environmentally

sensitive marine and coastal

environments, and marine

protected areas under the Birds and

Habitats Directives and other

regional agreements.

I Article 5: ensure public

access to information on

exploration operations.

II Preamble para 16: reference

to EIA and SEA Directives.

Article 5: public concerned

with the interest test has the

opportunity to comment and

its results are taken in

decision on the operations.

III Not present

Table 6 EU legal framework on the MSP

4.11 Limitations and concerns

1) The FMSP declares, in its preamble, that the MSP is meant to reconcile the conflicts between

environmental and economic objectives by applying the EBA. Applying the EBA means the

support in the achievement of GES and sustainable use of marine services. As demonstrated

before, the legal norms of the Directive quite shift away from achieving the balance prioritising

the economic goals while the EBA bears only formal character. It is suggested that all articles

of the FMSP are aimed to achieve and maintain GES, and all maritime activities are allocated

in the marine space in the least harmful way to the marine environment.

2) The proper implementation of the EBA in the MSP is complicated by the different

geographical scopes of the FMSP and MSFD where the achievement of the GES is introduced

for the marine regions while the MSP is within the jurisdiction of the coastal MS. Accordingly,

a successful implementation of the EBA as prescribed by the MSFD in the MSP is subjected to

the transboundary cooperation between MS.

On the other hand, the MS have a great margin to establish the MSP and whilst being

bound to achieve the GES that prescribes adaptive management and EBA, there is a hope that

MSP will also embrace environmental side of the EBA.

3) Sectoral legislation, including the Renewable Energy Directive should entail the EBA that

considers the possible impact on marine biodiversity and other maritime uses.

4) Public participation in legislation on environmental matters can be suggested to be ensured

in a three-pillar way in accordance with the scope prescribed by the EU rules implementing the

principles of public participation of the Aarhus Convention where the EU is a contractual party.


Aarhus Convention



93

In fact, there is repetitive lacuna with regards to ensuring access to justice in almost all the

analysed EU laws. Furthermore, the other pillars are somehow not consistent with the legal

framework on public participation introduced by the Aarhus Convention and the EU laws

implementing it.

6) FMSP and MSFD, as the key legislations on the MSP, are not incorporated into EEA

Agreement, and thus, they are not applicable for the EEA-EFTA states. This goes against the

existing legal practice and the principle of homogeneity.

4.12 Conclusion

The development of the EU legislation on MSP has begun since the adaptation of the Green

Paper in 2006 and resulted in the Directive in 2014. However, due to the absence of the

reference to an MSP in the TFEU, the establishment of the framework caused legal constraints

and resulted in a reduced Directive without regulation of the coastal areas (ICZM) as it falls

under the scope of SLP. The FMSP rests on the four legal basis which are under the scope of

the OLP: common fisheries policy, environmental, energy and sea transport, which is in

accordance with the CJEU practice that allows the combination of the different legal basis under

the same legal procedure.

The FMSP is the part of the IMP which also includes the MSFD, its environmental pillar

and Blue growth, its economic pillar. The MSFD aims to reach and maintain the GES of the

marine regions and sub regions, while the Blue growth promotes a sustainable growth of

maritime sectors. As shown by the analysis on the reflection of the EBA, the FMSP pays more

attention to the sustainable use of marine ecosystems than to the balance between use and

conservation, while de jure the EBA is presented in the Directive. Also, FMSP should contain

all three pillars of the public participation, however, only one pillar was reflected - public

participation in the decision-making process.

At the same time, the missing EBA and public participation concepts can be

complemented by horizontal legislation such as MSFD, SEA Directive and Directive

2003/4/EC as the FMSP allows a great margin of appreciation for the MS in the establishment

of the MSP.

Furthermore, the EEA-EFTA states have not incorporated the FMSP and MSFD into

the EEA Agreement, arguing that under the meaning of the EEA Agreement territory does not

include the EEZ and the continental shelf. However, this goes against the principle of

homogeneity of the EEA Agreement.

Moreover, the analysed sectoral laws having relevance to the MSP, such as Habitats and

Birds Directives, the CFP Regulation and the Offshore Safety Directive, to some extent

94

consider the EBA. At the same time, the Renewable Energy Directive does not consider the

EBA, and in all of these laws, the third pillar of public participation is missing. However, the

Offshore Safety Directive, the MSFD and the CFP Regulation provide the access to information

and rights to public participation in the decision-making process. Likewise, the Renewable

Energy Directive contains norms on access to information while the Habitats Directive

empowers the right in the decision-making procedure. Meanwhile, in accordance with the EU

legislation which implements the Aarhus Convention on public participation, access to

environmental information shall be provided by the Habitats and Birds Directives and the right

to the decision-making process shall be guaranteed by the Renewable Energy Directive.

95

5. Conclusions

The primary objective of this thesis was to examine whether international and EU laws are

supporting the implementation of MSP and if the necessary rules are available to scrutinise its

content in relation to EBA and elements of public participation. To achieve this objective,

international and EU laws relevant to MSP were analysed. Section 5.1 reflects outcome on what

is a successful MSP and its elements, EBA and public participation under international and EU

laws, section 5.2 presents findings of international law relevant to MSP with the regards to the

reflection of EBA and basic elements of public participation, section 5.3 contains discussion in

relation to MSP framework in the EU, and section 5.4 final conclusions.

5.1 What is an MSP?

The need to develop the MSP is determined by the increasing human population, the clashing

maritime activities, the degradation of marine biodiversity and the fragmented sector-based

regulations. As mentioned in chapter 2, the MSP emerged from the principles used for land-use

planning. However, when compared to other existing tools of marine governance, such as the

MPA and ICZM, the MSP offers a more inclusive framework and attempts to integrate these

two policies. There is no universally accepted definition of MSP, and its meaning varies at the

international and EU levels, being more eco-centric at the international arena and more

anthropogenic at the EU. It was suggested that the sustainable development, the EBA and the

MSP relate to each other as objective-method-tool. According to the theory on MSP, a

successful MSP shall include the EBA and allow for public participation, where the EBA

ensures the balance between the use and maintenance of ecosystem integrity, while public

participation is three fold, and includes access to information, public participation in the

decision-making process and access to justice.

5.2 International law relevant to MSP

In chapter 3, it was observed that at the international legal order the MSP was first mentioned

by the COP Decision to the CBD in 2012. Since then, it is barely mentioned by soft law

instruments: COP decisions to the CBD and the UNGA Report, and there is not yet a coherent,

legally-binding framework for the MSP. However, there are regulations on maritime uses that

are the premise for the MSP which is meant to integrate them into one well-functioned picture.

At the same time, the laws on maritime uses, such as the UNCLOS and the London Convention

fail to include norms on the EBA and public participation. Only the CBD somehow corresponds

to these norms, so does, partially relevant to the MSP, Fish Stock Agreement. Procedural

legislation such as the Aarhus and Espoo Conventions complement the lacking norms on public

96

participation. Accordingly, even acknowledging the existence of the few soft law instruments

on MSP, there is yet no international legal framework on the MSP, nor are there regulations on

maritime activities that include the EBA and public participation.

Section 3.6 suggests that the conclusion of the Agreement on MSP under the UNCLOS

and further actualization of all laws relevant to MSP so that they are compliant with this

Agreement could possibly reconcile the problem of the fragmented law on maritime activities.

5.3 MSP framework in the EU

As hypothesis suggested, there is the EU framework on MSP, and it contains the EBA and

public participation. In reality, however, the situation is far from desirable. The FMSP was

adopted in 2014 as part of the IMP to balance the environmental pillar - MSFD, and the

economic pillar - Blue growth. The development of the FMSP was complicated due to the

absence of reference to the MSP in the TFEU. Hence, it was established that the FMSP does

not bring forth any new policy, but integrates already existing maritime uses. Accordingly, it

rests on the four legal basis that fall under OLP. Initially the MSP was planned to integrate

marine and coastal waters while the ICZM was meant to be a part of MSP legislation. However,

because this occurred under the scope of two different legislative procedures, it was never

realised.

Although there is an extensive list of legal sources that build the framework on the MSP,

this thesis has only highlighted a small proportion of laws. This research includes: FMSP setting

obligations for MS to implement the MSP by 2021; horizontal legislation by MSFD that

primarily targets marine ecosystems and the achievement of the GES; SEA Directive binding

over to conduct strategic environmental assessments for plans and programmes that may harm

the marine environment; and sectoral legislation with conservational legislation – Habitats and

Birds Directives, fisheries law – Regulation on CFP, offshore renewable energy sources -

Renewable Energy Directive, and Offshore Safety Directive representing offshore oil and gas

exploitation.

From the point of inclusion of the EBA and public participation by the EU framework

on MSP, there is no straightforward answer. It was illustrated in section 4.6 that the legal norms

of the FMSP do not adequately reflect the EBA and prioritise economic goals over the balance

between sustainable use and conservation. Nonetheless, the MSFD, with its environmental goal

to achieve GES, can compensate for the missing conservational elements and achieve its overall

aim to reconcile economic, environmental and social objectives. At the same time, the MSFD

and the FMSP have different spatial applications that can make the implementation of the EBA

in the MSP difficult.

97

The overview in section 4.10 reflects the fact that most of the described sectoral

legislation relevant to the MSP include to some extent the EBA. Then, the situation with regards

to the inclusion of public participation is rather satisfactory due to the development of horizontal

legislations such as the SEA Directive and Directive 2003/4/EC. However, none of the

legislation analysed in this research encompasses the three pillars of public participation.

As suggested in section 4.11, achievement of the balance by the MSP between the use

and ecosystem integrity depends on national discretion and transboundary cooperation.

5.4 Final conclusions

MSP is yet an emerging tool to efficiently manage maritime uses and prevent the degradation

of marine ecosystems. According to the theory on MSP, this is only possible if an MSP is built

upon the EBA in tandem with public participation.

At present, there are no detailed rules in the international law to support the MSP even

when there are some premises for the EBA and a rather advanced principle of public

participation.

As regards the EU, there is a developed framework on MSP, however, its main legal

instrument, the FMSP, fails to properly reflect the EBA and public participation. Although the

overall EU framework on MSP to some extent reflects the EBA and only partially public

participation.

It remains to be seen if the goal, ‘by 2020, sustainably manage and protect marine and

coastal ecosystems to avoid significant adverse impacts’ can be achieved.

viii

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xiv

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xv

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